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BOSTOl^ 
PUBLIC 
tlBRARY 




GRANDPARENTS: THE OTHER VICTIMS 
OF DIVORCE AND CUSTODY DISPUTES 



HEARING 

BEFORE THE 

SUBCOMMITTEE ON HUMAN SERVICES 

OF THE 

SELECT COMMITTEE ON AGING 
HOUSE OF REPRESENTATIVES 

NINETY-SEVENTH CONGRESS 

SECOND SESSION 



DECEMBER 16, 1982 



Printed for the use of the Select Committee on Aging 
Comm. Pub. No. 97-372 




U.S. GOVERNMENT PRINTING OFFICE 
16-112 O WASHINGTON : 1983 



SELECT COMMITTEE ON AGING 
CLAUDE PEPPER, Florida, Chairman 



EDWARD R. ROYBAL, California 

MARIO BIAGGI, New York 

IKE ANDREWS, North Carolina 

JOHN L. BURTON, California 

DON BONKER, Washington 

THOMAS J. DOWNEY, New York 

JAMES J. FLORIO, New Jersey 

HAROLD E. FORD, Tennessee 

WILLIAM J. HUGHES, New Jersey 

MARILYN LLOYD BOUQUARD, Tennessee 

JIM SANTINI, Nevada 

DAVID W. EVANS, Indiana 

STANLEY N. LUNDINE, New York 

MARY ROSE OAKAR, Ohio 

THOMAS A. LUKEN, Ohio 

GERALDINE A. FERRARO, New York 

BEVERLY B. BYRON, Maryland 

WILLIAM R. RATCHFORD, Connecticut 

DAN MICA, Florida 

HENRY A. WAXMAN, California 

MIKE SYNAR, Oklahoma 

EUGENE V. ATKINSON, Pennsylvania 

BUTLER DERRICK, South Carolina 

BRUCE F, VENTO, Minnesota 

BARNEY FRANK, Massachusetts 

TOM LANTOS, California 

BOB SHAMANSKY, Ohio 

RON WYDEN, Oregon 

DONALD JOSEPH ALBOSTA, Michigan 

GEO. W. CROCKETT, Jr., Michigan 

WILLIAM HILL BONER, Tennessee 



MATTHEW J. RINALDO, New Jersey 

Ranking Minority Member 
WILLIAM C. WAMPLER, Virginia 
JOHN PAUL HAMMERSCHMIDT, Arkansas 
MARC L. MARKS, Pennsylvania 
RALPH REGULA, Ohio 
HAROLD C. HOLLENBECK, New Jersey 
NORMAN D. SHUMWAY, California 
OLYMPIA J. SNOWE, Maine 
DAN LUNGREN, California 
MILLICENT FENWICK, New Jersey 
JAMES M. JEFFORDS, Vermont 
THOMAS J. TAUKE, Iowa 
THOMAS E. PETRI, Wisconsin 
JUDD GREGG, New Hampshire 
DAN COATS, Indiana 
GEORGE C. WORTLEY, New York 
HAL DAUB, Nebraska 
LARRY E. CRAIG, Idaho 
PAT ROBERTS, Kansas 
BILL HENDON, North Carolina 
GREGORY W. CARMAN, New York 
COOPER EVANS, Iowa 
MARGARET M. HECKLER, Massachusetts 



Charles H. Edwards III, Chief of Staff 

YosEF J. RiEMER, Deputy Chief of Staff 

James A. Brennan, Assistant to the Chairman 

Paul Schlegel, Minority Staff Director 



Subcommittee on Human Services 
MARIO BIAGGI, New York, Chairman 



JAMES J. FLORIO, New Jersey 
WILLIAM J. HUGHES, New Jersey 
STANLEY N. LUNDINE, New York 
BRUCE F. VENTO, Minnesota 
DONALD JOSEPH ALBOSTA, Michigan 
GERALDINE A. FERRARO, New York 
WILLIAM R. RATCHFORD, Connecticut 
GEO. W. CROCKETT, Jr., Michigan 
WILLIAM HILL BONER, Tennessee 



MATTHEW J. RINALDO, New Jersey 

Ranking Minority Member 
JOHN PAUL HAMMERSCHMIDT, Arkansas 
NORMAN D. SHUMWAY, California 
OLYMPIA J. SNOWE, Maine 
DAN LUNGREN, California 
THOMAS J. TAUKE, Iowa 
THOMAS E. PETRI, Wisconsin 
LARRY E. CRAIG, Idaho 



Robert B. Blancato, Majority Staff Director 
John E. Vihstadt, Minority Staff Director 



(II) 



CONTENTS 



Members' Opening Statements 

Page 

Chairman Mario Biaggi 1 

Matthew J. Rinaldo 4 

WilUam J. Hughes 6 

Norman D. Shumway 8 

Geraldine A. Ferraro 9 

Tom Lantos 10 

Barbara A. Mikulski 11 

Chronological List of Witnesses 

Hon. Dolores G. Cooper, assembl5rwoman, district 2, Atlantic City, N.J., pre- 
pared statement submitted by Hon. William J. Hughes, a Member of Con- 
gress from the State of New Jersey 7 

Panel 1 — Social issues: 

Gerrie Highto, Baltimore, Md 12 

Mr. and Mrs. Max Chasens, founders. Equal Rights for Grandparents 16 

Mr. and Mrs. Lee Sumpter, founders, Grandparents/Children's Rights, 

Inc., Haslett, Mich 20 

Mr. and Mrs. Harvey Kudler, Flushing, N.Y 32 

Mrs. Henry Engle, Larchmont, N.Y 40 

Panel 2 — Psychiatric viewpoint: 

Dr. Arthur Kornhaber, Mount Kisco, N.Y., psychiatrist and founder, 
Foundation for Grandparents; co-author, "Grandparents-Grandchildren, 

the Vital Connection" 50 

Dr. Andre Derdeyne, professor of psychiatry, director, Division of Child 
and Family Psychiatry, University of Virginia School of Medicine, 

Charlottesville, Va 68 

Panel 3 — Legal viewpoint: 

Judith Areen, professor of law, and professor of community and family 

medicine, Georgetown University Medical Center 73 

Richard S. Victor, attorney. Oak Park, Mich 83 



Appendix 

Additional material received for the record: 

Doris Jonas Freed, chairperson. Committee on Child Custody Section of 

Family Law, American Bar Association, prepared statement 

Bettie J. LaMotte, prepared statement 



121 
125 



(III) 



GRANDPARENTS: THE OTHER VICTIMS OF 
DIVORCE AND CUSTODY DISPUTES 



THURSDAY, DECEMBER 16, 1982 

U.S. House of Representatives, 

Select Committee on Aging, 
Subcommittee on Human Services, 

Washington, D.C. 
The subcommittee met, pursuant to notice, at 9:35 a.m., in room 
2261, Rayburn House Office Building, Hon. Mario Biaggi (chairman 
of the subcommittee) presiding. 

Members present: Representatives Biaggi of New York, Hughes 
of New Jersey, Ferraro of New York, Rinaldo of New Jersey, 
Shumway of California, and Craig of Idaho. 
Also present: Representative Lantos of California. 

OPENING STATEMENT OF CHAIRMAN MARIO BIAGGI 

Mr. Biaggi. The hearing is called to order. 

As chairman of the Subcommittee on Human Services I am 
pleased to convene this morning's hearing entitled "Grandpar- 
ents — The Other Victims of Divorce and Custody Disputes." 

I also conduct this hearing as a grandfather with six grandchil- 
dren. 

The House Select Committee on Aging is charged with the re- 
sponsibility to "conduct continuing comprehensive study of the 
problems of the older American, including . . . participation in 
family and community life." Our subcommittee is exploring the 
problem and issue of providing grandparents with the visitation 
rights under law after marital dissolution. 

During the course of today's proceedings, we hope to address four 
basic questions: 

What legal rights do grandparents have to visit their grandchil- 
dren after divorce and custody settlements and other forms of 
marital dissolution? What are the obstacles to enforcement? 

Should a Federal law be enacted to guarantee these rights in the 
eight States which have no laws? 

Is a Federal law needed to help bring uniformity to the 42 large- 
ly different State laws which govern grandparent visitation rights? 

Are grandparents being afforded equal protection under existing 
State laws which govern visitation rights? 

Today in America, approximately 70 percent of older people in 
the United States have grandchildren. Statistics reveal that women 
become grandmothers at approximately 50 years of age, and men 
become grandfathers around age 52. Based on current life expec- 

(1) 



tancy, this can leave as much as a 20- to 30-year period for the de- 
velopment of meaningful relations between grandparents and 
grandchildren. That is the positive side of the coin. 

On the negative side, over 1 million children a year experience 
the divorce of their parents; a startling 48 percent of those who 
married in 1970 will eventually divorce. Most people who get di- 
vorced will remarry in many instances within 3 years. These con- 
temporary shifts in divorce and remarriage are radically changing 
the character and structure of the family as we know it. In 1978, 10 
million children lived in a household with one natural parent and 
one stepparent. Today we have far more than the traditional 
grandparenting. We now have the stepgrandparent and the multi- 
ple grandparent family. What we seek to address today is what 
rights will these grandparents as well as biological grandparents 
have to visit their grandchildren after marital dissolution. 

Our hearing is structured so we may examine the issue from 
three perspectives— social, legal, and psychological. Our first panel 
of witnesses could be best described as advocates. A testimonial to 
the degree of interest which this issue has generated has been the 
establishment of at least four national grandparents' rights organi- 
zations. We are proud this morning to have the founders of three of 
them with us today. These witnesses, who themselves are grand- 
parents, will address the problems associated with the 42 State 
statutes on this subject as well as the lack of judicial decisiveness. 

Some of our witnesses have incurred enormous personal ex- 
pense—as much as $60,000 in one instance— simply to acquire basic 
visitation privileges with their grandchildren. An issue we must 
raise today— what does a grandparent without financial resources 
do— are they being denied equal protection under the law? Finally, 
this first group of witnesses will offer their views on what role, if 
any, the Federal Government should have in this area. 

Our second group of witnesses are noted psychiatrists in this 
field who will address the importance of grandparent and grand- 
children relations, as well as problems which can ensue from ad- 
versarial court battles. These witnesses will also discuss this issue 
from the standpoint of what is in the child's best interest in award- 
ing grandparent visitation privileges. 

Our third and final group of witnesses are lawyers who will try 
and tackle the complex legal issues before us today. The most fun- 
damental of these is: Is there a Federal role in this area, and if so 
what is it? Further, does the existing lack of uniformity among the 
42 State laws on grandparent visitation impact adversely on the 
implementation of these rights by the affected grandparents? Is 
there a denial of equal protection under the law by virtue of exces- 
sive costs which certain States require in order for a grandparent 
to gain visitation privileges? Finally, when determining the legal 
status of grandparent visitation privileges— how is "best interest of 
the child' standard applied? 

One of the most remarkable developments— that has occurred 
since this hearing was announced several weeks ago — has been an 
influx of calls and letters from across the Nation from grandpar- 
ents and others concerned with this issue we will raise today. Here 
is a folder of all of those letters, and the office has been besieged 
with phone calls, and I expect that it will develop into an ava- 



lanche as a result of these hearings. These letters — which total 
more than 100 — address themselves to the major issues we will dis- 
cuss today. 

Many of those grandparents who wrote shared similar problems. 
The diversity of State laws seemed to be a major problem. A den- 
tist, from El Cajon, Calif., who has been involved in litigation for 
2 ¥2 years to be granted the right to visit his 4-year-old grandson, 
writes: 

I know the situation is not too unlike hundreds of others in a changing world. 
Families falling apart and little children losing contact with sometimes the only 
stable relationship in their lives. There seems to be no coordination between our 
States regarding this seriously overlooked problem. We worry that the court order 
we have here in California would not be worth a thing if our grandson were taken 
out of the State. 

The costs involved in litigation was another common complaint. 
A letter from grandparents in Fullerton, Calif., who have been 
denied visitation privileges to visit their only granddaughter after 
their daughter died in 1981 wrote: 

We tried to get an attorney but he discouraged us by telling us it could cost up to 
$10,000 and we could not be assured of any results. We do not have this kind of 
money but whatever we have it will go to our granddaughter. 

The son of a Lincoln Park, Mich, couple died in March 1977. 
Since then the daughter-in-law has remarried and adopted their 
grandson. They wrote: 

We have been in and out of the courts — and spent thousands of dollars on lawyers 
and still are not seeing our grandson. 

The emotional strain of both, the lack of uniform laws and the 
cost of litigation was evident in almost all of the letters. There was 
a notable concern about the effect it was having on the children. A 
grandmother from Lansing, Mich, wrote: 

Our grandson is probably unaware of all our attempts to get him back. Gifts, let- 
ters and cards have gone unacknowledged. To me, this is child abuse. 

A grandmother from Wheeler, Wis. writes: 

It took us 14 hard, long, and painful months to get to see our grandson after the 
divorce. We couldn't even stand to go into stores and look at children's clothes. It 
just hurt too much. Why should the grandchildren and grandparents pay for mis- 
takes the parents make? 

As I have stated before — our purpose today is to focus national 
attention — if you will — launch a national debate on the issue of 
grandparents and their visitation privileges to see their grandchil- 
dren in the event of a marital dissolution. 

Our other purpose is to listen carefully to testimony on recom- 
mendations of experts and others concerned with this topic on the 
delicate issue of which level of government should assume responsi- 
bility for the enactment and enforcement of laws on behalf of 
grandparent visitation. It is evident that State governments have 
assumed some responsibility with 75 percent of them having en- 
acted statutes. However, if there is in fact a Federal question in- 
volved we would like to know about it and then proceed in the 
usual bipartisan manner which characterizes our committee's 
work. 

The only recommendation I do offer is, in order to bring a sense 
of uniformity to the 42 State laws which have been adopted, to 



have the diversity-of-State-law issue be referred to the National 
Conference of Commissioners on Uniform State Laws for their eval- 
uation and ultimate action. This non-Federal Government entity 
was established in 1892 and is vested with the responsibility to pro- 
mote uniformity in State laws on all subjects where uniformity is 
deemed desireable and practical. 

Let me close my statement with a poem that was written about 
an 82-year-old grandfather who has been denied the right to see his 
only granddaughter, Kim. 

Grandpa, can I see you? 
Could you take me to the fair, 
Would you read me a little story, 
And tell me that you care. 

Grandpa, would you walk with me? 
Or hold me on your knee? 
I wish that I could talk to you, 
Grandpa, why can't it be? 

Grandpa, do you love me? 
Yes, I love you too. 
I dream of us together, 
Do dreams ever come true? 

Grandpa, I keep praying 
We'll be laughing very soon 
And someday we 11 be singing 
A simple little tune. 

Grandpa, can I see you, 

I know this isn't fair; 

But things will soon be changing, 

And we can be a pair. 

Grandpa, we'll be together 
Just wait a little while. 
Grandpa, don't stop trying, 
I want to see you smile. 

— by Susan Vaughn. 

I recognize the gentleman from New Jersey, Mr. Rinaldo. 

STATEMENT OF REPRESENTATIVE MATTHEW J. RINALDO 

Mr. Rinaldo. Thank you very much, Mr. Chairman. 

I want to take this opportunity to commend Chairman Biaggi for 
convening this hearing today, and also my distinguished colleague 
from New Jersey, Congressman Hughes, for initiating this hearing. 
I think the issue of visitation rights for grandparents and their 
grandchildren is a national problem, and as such deserves this type 
of national attention. 

With our thoughts turning toward our families as the holidays 
approach, we are reminded that grandparents and grandchildren 
are indeed a vital connection. I was thinking as I was coming up to 
the hearing this morning of my own family situation. My father is 
retired now, just celebrated his 73d birthday. My mother does not 
tell anybody her age, but it is close to that. I know that I have a 
total of 10 nieces and nephews, and they just about live and exist 
for those children. He is in perfect health, but he will drive from 
Union, N.J. to Maryland to visit the grandchildren. He will call 
them up, and that is what they spend most of their time doing and 
they would rather do that than go on a vacation to Hawaii or any- 
where in the world. I would just wonder what would ever happen 



to them and to their Hves and their willingness to even live if 
something happened where they were cut off and could not for one 
reason or another visit their grandchildren. 

I recognize the problem. I also recognize that it is a widespread 
problem, and as a result of that at least four organizations have 
been formed to aid grandparents and their grandchildren in their 
quest to continue relationships threatened by death, divorce, or 
other family upheaval. 

I understand that Mr. and Mrs. Max Chasens of my home State 
have founded a group called "Equal Rights for Grandparents." I 
am pleased that they are here today and are going to testify and 
tell us about their own personal struggle to see their grandchil- 
dren. 

As grandparents assert their rights, it is encouraging to note 
that some progress has been made. According to an American Bar 
Association survey, 40 States, including New Jersey, have enacted 
laws to grant grandparents visitation rights under certain circum- 
stances. Clearly, the States and the courts are beginning to recog- 
nize the psychological and social benefits coming from protecting 
and nurturing the relationships between grandparents and their 
grandchildren. 

In any judicial proceeding there are competing parties with com- 
peting interests. Too often, in order to frustrate the award of a 
State decree granting visitation rights, the child's custodian may 
unilaterally remove the child across State lines. In order to deter 
this type of thing, facilitate the enforcement of custody and visita- 
tion decrees of sister States, and to promote secure and stable 
family relationships for the child. Congress passed the Parental 
Kidnaping Prevention Act of 1980. Now when a State's decree pro- 
vides grandparents visitation rights, those rights are fully enforce- 
able as a matter of Federal Law in the courts of any other State of 
the Union, so long as the requirements of the act are met. This act 
also authorizes the FBI to assist State law enforcement authorities 
in the investigation of interstate child-stealing cases. 

Mr. Chairman, I am hopeful that by your taking the lead, by the 
initiative of Congressman Hughes in seeing to it that this hearing 
was convened, we will be putting the spotlight on the problem 
today. I am hopeful that our hearing will encourage enactment of 
grandparents' visitation rights statutes in the minority of States 
which do not have them. If it is appropriate for the House Aging 
Committee to examine this issue, as it is, from the perspective of 
the grandparent, perhaps it is equally appropriate for the newly 
constituted House Select Committee on Children, Youth, and Fami- 
lies to explore this problem from other perspectives when the 98th 
Congress convenes next year. 

Given the vast variations among existing State laws on this sub- 
ject, I join you, Mr. Chairman, in urging that the National Confer- 
ence of Commissioners on Uniform State Laws also consider the 
issue. If it is appropriate, Mr. Chairman, perhaps we could send a 
letter, this committee, to the National Conference of Commission- 
ers requesting that they take action. At this point I would like to 
request unanimous consent that we do that and have the letter 
prepared by staff and available for signatures by as many members 
of the committee as would be willing to sign it. 



Mr. BiAGGi. You were not here, but clearly it was part of my tes- 
timony that indicated that is exactly what we are going to do. That 
is what I intend to do after the conclusion of this hearing. 

Mr. RiNALDO. I want to commend you for that action, because I 
certainly think it is appropriate, it is something long overdue. 

I want to welcome the witnesses here this morning, and hope 
that your testimony will lead to the type of results that we all 
desire. 

Thank you, Mr. Chairman. 

Mr. BiAGGi. Thank you. Before I introduce my colleague, Mr. 
Hughes, let me say that what we see happening here is an area of 
neglect. It is really part of the aging problem, because the aged 
have been neglected traditionally, and more and more we have 
been focusing attention on their concerns. This is part of their con- 
cerns, and we are just catching up to this facet of their lives. There 
is no doubt in my mind that by having this hearing, focusing atten- 
tion on this problem, working together and projecting it into the 
spotlight so that it would be given its rightful place in the minds 
and hearts of America, that there will be some response. It is 
really an extension of the aging problem. We have been fortunate 
so far in the progress we have made through the full committee 
under the chairmanship of Claude Pepper. This committee has 
been responsible for most of the Federal legislation that has re- 
dounded to the benefit of the aging. 

I would like to introduce my colleague from New Jersey, Mr. 
Hughes. He has been a most valuable member of this committee, 
and has expressed early interest in this problem. 

STATEMENT OF REPRESENTATIVE WILLIAM J. HUGHES 

Mr. Hughes. Thank you, Mr. Chairman. 

Let me echo the sentiments of my distinguished colleague from 
New Jersey and the ranking minority member of the full commit- 
tee, in saying thank you for scheduling this hearing. I too think it 
is a serious subject. I will make my remarks brief, because I know 
we are anxious to hear the witnesses. 

The heartbreaking difficulties encountered by grandparents who 
attempt to secure the right to visit their grandchildren in the wake 
of marital dissolution were recently brought to my attention by 
Hon. Dolores Cooper, an assemblywoman from Atlantic County, 
N.J., whose testimony, unfortunately, we will not have the privi- 
lege of hearing this morning because business in New Jersey pre- 
vents her from being with us. However, we do have two very distin- 
guished Atlantic Countians, Mr. and Mrs. Max Chasens, who have 
been involved with such a visitation case. I first learned of their 
plight a number of months back after talking personally with Mr. 
Chasens and seeing accounts of what occurred, and I became very 
interested in seeing the focus of a hearing spotlighted on this par- 
ticular problem. 

The termination of a marriage, whether it be a result of death, 
divorce, or separation, is a tragic event, especially if there are chil- 
dren involved. Magnifying the sorrow of this situation by destroy- 
ing the precious and unique relationship between children and 
their grandparents is, I believe, something that should be avoided 



if at all possible. At the same time, however, we must be sure to 
observe the delicate balance that exists between the best interests 
of the children, parents, and grandparents involved. 

I am pleased that New Jersey is among the 38 States which now 
have statutes granting grandparents the right to petition the 
courts for reasonable visitation rights. I am concerned, however, 
over the disparity among these States, and the lack of similar stat- 
utes in the other 12 States. 

I am confident that the distinguished witnesses we have here 
today will provide us with answers on how to best address the com- 
plex issues surrounding grandparents' visitation rights. I look for- 
ward to hearing their testimony. 

I might say in passing that I too know that my own mother 
would be absolutely destroyed if she could not meet and love and 
understand and see her grandchildren grow and prosper. In my 25 
years of practicing law, I think one of the most disturbing things to 
me was to see the breakdown in that relationship. It probably got 
to me more than anj^hing else, because you could see the young 
people suffer because of that lost relationship. So I look forward to 
hearing the testimony. I have a statement that the Honorable Do- 
lores Cooper has provided for us, and I would like permission to 
insert that into the record. 

Mr. BiAGGi. Without objection. 

[The prepared statement of Hon. Dolores G. Cooper, assembly 
woman. District of Atlantic City, N.J., follows:] 

Prepared Statement of Dolores G. Cooper, Assemblywoman, District 2 
(Atlantic), Atlantic City, N.J. 

Honorable Mario Biaggi, and members of the Select Committee on Aging: I am 
deeply grateful to all of you for giving me the opportunity to address you today, 
through the efforts of our Congressman William J. Hughes, an elected official sensi- 
tive not only to the needs of his constituents, but to all honorable people — in this 
case, the grandparents of the United States who are being denied the greatest 
reward of their golden years — the right to cherish and to love their grandchild or 
children. 

However, the speaker of the New Jersey Assembly has called the final session of 
the legislature this morning, Thursday, making it totally impossible for me to be 
with you this morning inasmuch some legislation affects Atlantic City, Atlantic 
County was well as my co-sponsorship of several bills. 

Therefore, I am requesting your permission to accept my humble testimony 
through Max Chasens, the first grandparent in Atlantic County who alerted me, 
more than two years ago, of this growing social problem, one which, obviously, legis- 
lation, as it presently exists in 38 States, has not found a satisfactory solution and 
must, as soon as possible, be guided by Federal guidelines issued to State legisla- 
tures. 

We are aware if the growing divorce rate, with statisticians telling us that by 
1990, one out of every two marriages will terminate in divorce, or, a complicated 
separation. Who bears the scars of this terrible statistic? Yes, a mother and or a 
father, the ex-husband or ex-wife, to an extent, but it is the child of this unhappy 
marriage. The grandparents — one, two, three or four persons who have given this 
child, or children, pure, unadulterated love. In the many cases that I have re- 
searched, I have found that the grandparent/ parents have extended the only emo- 
tional stable relationship that the child experienced. Grandparents have become the 
confidantes, the substitute parents in many instances, and offered the child the only 
encouragement to look at life through normal eyes and emotions with love and com- 
passion rather than the hatred and rancor experienced in the home. 

Testimony has continued endlessly, and you have heard witnesses and presenta- 
tions concerning the wretched experiences the grandparents have suffered at the 
hands of these vindictive ex-daughters and sons-in-law. 



8 

Now I request, members of the Ck)mmittee on Aging, that you examine the laws of 
the 38 States who have some guidelines in this direction, and consolidate these di- 
luted, antiquated pablum-type laws and statutes into strong, meaningful guidelmes 
protecting the innocent and injured. .. o. . • j- ■ i 

My dream is for creation of Federal guidelines handed down to the btate judicial 
system creating firm, enforceable guidelines not to keep grandparents in limbo, or 
appearing constantly in court to explain their crime— the crime of wantmg to see 
and touch a grandchilu, to love and to cherish. 

I am not a grandparent at this time of my life. But I hope that God will grant me 
that category some day. I have already shared the tears and heartaches of those 
who have such an abundance of love to give— don't deprive them of this one remain- 
ing factor in their life— the touch of the child, the sweetness of a kiss, the emotion 
of sharing— the generation of a name— 

From the State of New Jersey, I gladly accept any responsibility m enabling you 
to make this dream a reality, and with wisdom, and God's help, show our love for 
the grandparents of the United States. Thank you. 

Mr. BiAGGi. Mr. Shumway. 

STATEMENT OF REPRESENTATIVE NORMAN D. SHUMWAY 

Mr. Shumway. Thank you, Mr. Chairman. I appreciate your con- 
vening this hearing. It is a very timely subject and most appropri- 
ate that we have an airing of it here in our Nation's Capital. I 
would like to welcome each of the witnesses on this panel and the 
panels that will follow and extend my appreciation for your being 
available and presenting testimony to us here today. 

Mr. Chairman, the American family is both aging and changing, 
and I commend you and think it most important that we focus not 
only on grandparents but on intergenerational families. I look for- 
ward to working with you in the future, and I particularly would 
like to express the appreciation that I feel for the role that my 
home State of California has played in this subject. California has 
been on the leading edge in terms of both statutory change and 
case law in developing some innovations and new ideas on this sub- 
ject. I hope that that particular process continues to unfold in Cali- 
fornia as well as in other States across the Nation. Perhaps what 
we do here today will be the impetus for that kind of action occur- 
ring. 

I would like again to express my appreciation to you, and ask 
your permission to extend my full remarks in the record. 

Mr. BiAGGi. Without objection, so ordered. 

[The prepared statement of Representative Norman D. Shumway 
follows:] 

Prepared Statement of Representative Norman D. Shumway 

Chairman Biaggi, I wish to commend you for convening today's hearing on Grand- 
parents—The Other Victims of Divorce and Custody disputes. I want to welcome 
each of today's witnesses to the subcommittee and extend to you my appreciation 
for the enlightening testimony you will present today. Mr. Chairman, the American 
family is both aging and changing, and I commend you for focusing not only on 
grandparents but on inter-generational families. I look forward to working with you 
on a responsive solution to the plight of grandparents and the future of the family. 

One of today's witnesses. Dr. Kornhaber, has characterized grandparents as emo- 
tional guardians of the young, as living ancestors who provide us with a sense of 
history and commitment to family roots. Grandparents are valuable mentors for 
teaching ethnic heritage, religious faith, and moral and cultural values to their 

grandchildren. , . , . . , „ ,. 

The pressures on today's extended family, such as the high incidence of divorce, 
job transfers and economic conditions, often victimize the most vulnerable members 
of society — children and grandparents. 



Today the subcommittee will review judicial and legislative solutions to the prob- 
lem of grandparent visitation rights. I trust that we will also look beyond legal in- 
tervention into family situations and consider efforts that would promote a greater 
public awareness of grandparenthood and inter-generational families. Hopefully, we 
will also look at the value of psychological research and family counseling as an 
alternative to judicial and legislative solutions. I trust that the subcommittee will 
also consider the sjmaptoms to some of the major causes of this problem, such as the 
rapid rise in the divorce rate in the past two decades and the erosion of not only the 
extended family, but the "nuclear" family structure. 

The problem with grandparent visitation rights occurs primarily in the event of 
death, divorce or sepaiation of the parents. The rapid rise in the divorce rate during 
the last decade, especially in families with young children, results in injustices to 
the victims — old and young alike. 

Before 1940, the divorce rate was approximately 2 per 1,000 in population. It 
reached a historic level of 5.1 per 1,000 in 1978. There were 1.1 million divorces and 
2.2 million marriages in that year. It is not surprising that if this rate of divorce 
continues on a lifetime basis, the proportion of marriages ending in divorce may be 
close to 40 percent. 

The impact of divorce is significant: the number of children involved in divorce 
tripled in two decades from 361,000 in 1956 to 1,117,000 in 1976. 

The impact of the divorce rate has a great impact on the basic family unit. Since 
1960, there has been a far more rapid increase in the number of 1 parent families 
than two parent families. By 1978, 19 percent of all families with sons and daugh- 
ters under 18 years of age were maintained by 1 parent, 17 percent by the mother 
and 2 percent by the father. 

I trust that the subcommittee will look at these demographic trends as they relate 
to the problems that grandparents are experiencing as family members. 

Today we will hear testimony on legislative and judicial remedies to the problem. 
The State of California has had several significant court cases based upon common 
law as well as State statutory law that apply to grandparents visitation rights. 

California was one of the first six States to enact statutes providing the legal 
means for grandparents to bring suit for visitation privileges. Currently, California 
law allows trial courts to award visitation to interested parties (including grandpar- 
ents) if it is in the best interests of the child. California law also specifically allows 
grandparents and other relatives to seek visitation rights in the event of death of 
the parents. 

Currently, 40 States have statutes conferring grandparents standing to seek court 
visitation rights under certain circumstances. 

There is also great judicial awareness of the importance of existing associations 
and inter-generational contacts as in the best interest of the child. 

In California, a series of cases have been decided on several emergent issues, such 
as the effect of adoption on grandparent visitation privileges, the impacts of animos- 
ity between the custodian and the grandparent seeking visitation, and the health 
and best interest of the child. 

Mr. Chairman, I look forward to today's hearing and testimony from grandpar- 
ents themselves, who will give us a first hand account of their experiences with this 
important issue. I look forward to working with Chairman Biaggi in developing an 
appropriate solution to the plight of grandparents in our society. 

Mr. Biaggi. The gentlelady from New York. 

STATEMENT OF REPRESENTATIVE GERALDINE A. FERRARO 

Ms. Ferraro. I want to congratulate you for holding the hearing. 
When I had my children I thought I had achieved the ultimate as 
far as family life was concerned, until my mother said wait until 
you are a grandmother. I do not want to hurry that, but I am wait- 
ing and I am looking forward to that day. We have talked about 
what occurs when grandparents lose the right of visitation and 
what effect that has on the grandparents. I received a letter from a 
constituent indicating what happens to the children. I would like to 
read to you one paragraph: 

In so many cases with divorced children unforeseen hostility with one of the par- 
ents destroys family relationships and prevents needed contact and supportive 
warmth. Particularly at that time of disruptions children require as much reassur- 



10 

ance and cohesiveness as possible, and grandparents who nurture and give of their 
experience and wisdom are a vital factor. 

Families are an integral part of society's salvation. 

Sincerely yours, Edith L. and Henry W. Engel, grandparents of four— two we are 
devoted to and loved by; two we are fighting for visitation rights. 

They bring the approach to the problem from the viewpoint of 
the needs of the child, and I think that is something that we must 
look carefully at. When families are disrupted, that is when chil- 
dren need that warmth and affection and understanding that 
grandparents can so readily provide. 

I too congratulate you on these hearings, Mr. Chairman, and I 
look forward to hearing from our witnesses, particularly our wit- 
nesses from Queens County, N.Y. 

[The letter follows:] 

December 12, 1982. 

Congresswoman Geraldine A. Ferraro, 
House of Representatives, 
Washington, D.C. 

Dear Congresswoman Ferraro: May we urge you to address Congressman Mario 
Biaggi with respect to his serious consideration on Thursday, December 16, of the 
vit^ need for legislation on a Federal basis to insure Visitation Rights for grandpar- 
ents. 

In so many cases with divorced children unforeseen hostility with one of the par- 
ents destroys family relationships and prevents needed contact and supportive 
warmth. Particularly at that time of disruptiveness children require as much reas- 
surance of cohesiveness as possible, and grandparents who nurture etnd give of their 
experience and wisdom are a vital factor. 

Families are an integral part of society's salvation. 
Sincerely yours, 

Edith L. and Henry W. Engel. 

Grandparents of four — two we are devoted to and loved by; two we are fighting 
for visitation rights. 

Mr. Biaggi. Mr. Lantos. 

STATEMENT OF REPRESENTATIVE TOM LANTOS 

Mr. Lantos. First, Mr. Chairman, allow me to make a personal 
observation. I have watched and participated in many congression- 
al hearings over the last 30 years, but this is the first time I saw 
the chairman of the committee conducting the hearing fighting 
back his tears as he finished testimony. And I noticed that several 
people at the witness stand were doing the same. So was L 

We are dealing with an issue of monumental importance. Grand- 
parents in many instances are the only stable unit in a family. And 
while the hearing is focused on grandparents and their rights, 
what we are really dealing with fundamentally is the grandchild, 
because my approach to this issue, which is an issue I have been 
deeply interested in for many years, is not from the point of view 
of the grandparent. All of us who are grandparents have had 
enough anguish and suffering in our lives, so we can take some 
more. But the injustice, the unfairness, the outrage of denying 
little children the love, the affection, the care, the concern of the 
grandparent is something that even a society such as ours — where 
the family has disintegrated to such an extent — should not allow. 

Usually it is customary at the beginning of a hearing to be or to 
pretend to be open-minded. Usually it is customary to say that we 
want to hear and see all the evidence before we make up our 



11 

minds. Well, this Member of Congress has his mind made up. 
There is not the slightest doubt in my mind, Mr. Chairman, that 
strong Federal legislation is called for. I intend to pursue strong 
Federal legislation, and I intend to make that strong Federal legis- 
lation my top legislative priority in the upcoming session. 

We are dealing with anguish and suffering ranging from the tin- 
iest of grandchildren to the 82-year-old grandfather whose poem 
you read, and if this body is not prepared to address that issue, 
then our preoccupation with the nuclear freeze or the MX missile 
or the 5-cent gasoline tax will sound very hollow indeed. 

Thank you very much. 

Mr. BiAGGi. Thank you, Mr. Lantos. 

We have the panel consisting of grandparents, and this morning 
one of our colleagues, a very outspoken and very concerned 
Member, Barbara Mikulski, is recognized. 

STATEMENT OF REPRESENTATIVE BARBARA A. MIKULSKI 

Ms. Mikulski. Thank you, Mr. Chairman. I am here to introduce 
one of my constituents who has been a leader in Maryland in orga- 
nizing for legislative change to bring about grandparent visitation 
rights. In Maryland, women being outspoken is not limited to 
Members of Congress, but certainly more so at the grassroots con- 
stituency. 

However, Mr. Chairman, I would like to thank you and this com- 
mittee for convening this hearing and once again providing a na- 
tional forum to people who have either been denied it or who have 
had to fight to get it. 

If one takes a look at the men and women at the table today, you 
would see that they have probably had eight quarts of water wait- 
ing to talk. Are they nervous about speaking today? They are. Why 
are they nervous? Because these are people who are strong organiz- 
ers and accomplished in their right. It is because they have been 
used to running into rejection, hostility, and the trivialization of 
their issue. They are so used to being in a negative environment 
that they think they are going to be grilled like ethnic hot dogs 
today. I have been telling them what a terrific committee this is, 
Mr. Chairman, your leadership and Mr. Hughes and others. The 
committee should be thanked enthusiastically for providing a 
forum for my constituents to tell their stories in their way. 

Senator Rosalie Abrams, our majority leader, introduced legisla- 
tion in Maryland in 1975 to deal with the issue. It was decided it 
was not as important as dealing with banks and land development 
and providing more and more opportunities for condo conversion. It 
was ignored as one of those silly family issues that we do not have 
to pay any attention to. But this is one grandmother who took her 
personal anguish and turned it into a grassroots action in Mary- 
land. When I asked her what was the name of your group, she said, 
"I did not have a group, all I had was me, and I stood alone until 
the petitions, the buses started rolling to our State capital." This is 
the woman who singlehanded organized the grandparents 

Mrs. HiGHTO. With my husband. 

Ms. Mikulski. With her husband. As we know, every good 
woman has a good man behind her. 



12 

Mr. BiAGGi. I thought the more contemporary view was that the 
man was beside her. 

Ms. MiKULSKi. When we get the equal rights amendment, Mr. 
Chairman. That is the story of Mrs. Highto. I am pleased to intro- 
duce her to the Members of the Congress here today, because I 
know she is representative of many others. My own support for 
this legislation is just right there. When my mother had her triple 
b3TDass this summer and the family pitched in, it was her grand- 
children from age 5 to 14 who were ready to move in with granny, 
help with the housework and do the errands. Whether you were 5 
and could dust the baseboards or 14 and could run the errands, we 
were there. 

Not long ago my house was broken into. It was not because they 
took the clock-radio or the TV that I was upset. They took things 
my grandfather had given me. What my grandfather gave me was 
more than a few coins. He gave me a sense of identity. He told me 
the stories of Poland and where we had come from. He taught 
where we had come from and what this country meant. 

As a youngster I was working with my grandmother out of our 
ethnic baker shop. When I ran for Congress they said if you are 
half as good as your grandmother's cookies, you will be an excel- 
lent Congresswoman. 

I treasure the relationship I had with my grandparents, and I 
can assure Mr. Rinaldo and other members of the committee, I 
hope to be on the Select Committee on Children, and then intend 
to pick this up from the standpoint of the children. But I can only 
say that you have my wholehearted support, and I know Mrs. 
Highto here will blast the networks right off because of what she 
has to say. 

Thank you very much, and I look forward to hearing the testimo- 
ny. 

Mr. BiAGGi. Mrs. Highto. 

PANEL 1— SOCIAL ISSUES, CONSISTING OF GERRIE HIGHTO, BAL- 
TIMORE, MD., MR. AND MRS. MAX CHASENS, FOUNDERS, EQUAL 
RIGHTS FOR GRANDPARENTS, MR. AND MRS. LEE SUMPTER, 
FOUNDERS, GRANDPARENTS/CHILDREN'S RIGHTS, INC., HAS- 
LETT, MICH., MR. AND MRS. HARVEY KUDLER, FLUSHING, N.Y., 
AND MRS. HENRY ENGLE, LARCHMONT, N.Y. 

STATEMENT OF GERRIE HIGHTO 

Mrs. Highto. Thank you very much. 

Honorable chairman and honorable members of the Select Com- 
mittee on Aging, my name is Gerrie Highto. I am from Baltimore, 
Md. I am here to testify in regard to the areas of domestic human 
relations concerning the aging and the issue of visitation rights for 
grandparents. 

The issue of grandparents' rights to visit with their grandchil- 
dren is one issue that has, unfortunately, been totally neglected. 
With the divorce rates exceeding 50 percent and where grandchil- 
dren are involved, some grandparents are completely shunted 
aside. Unfortunately, I know too many grandparents who are in 
this position today, simply because of the hostilities of the divorc- 
ing couple who use the children as pawns, in an effort to get even 



13 

with each other. This issue exists also among grandparents whose 
natural children, whether they be divorced or not, become angry 
with their own parents and they, too, will spitefully withhold the 
children from seeing their grandparents. Another situation which 
involves grandparents, and this happens quite often, is the untime- 
ly death or disappearance of the noncustodial parent. When this 
happens, the custodial parent may, for whatever reason, withhold 
the grandchildren from seeing their grandparents, who have abso- 
lutely no rights whatsoever, and completely destroying the poor 
grandparents. 

The churches, synagogues, schools, family and children services 
are keenly aware of this matter, but the only thing they can offer, 
depending of course on the State, is compassion for the grandpar- 
ents. Is compassion to take the place of your feelings, your roots, 
the age-old dream of begging God to allow you to live your remain- 
ing years with your grandchildren? Some States have passed legis- 
lation allowing grandparents to petition the courts for visitation 
rights, and the decision is left to the discretion of the presiding 
judge. The Maryland State Legislature passed senate bill 333 spon- 
sored by Hon. Senator Rosalie Abrams, who is the majority leader 
in the Maryland State Senate. The bill really is not strong enough. 
It should be much stronger if it is to be of any help whatsoever and 
not just to pacify. 

Many people who are aware of the unique relationship between 
grandparents and grandchildren are trying desperately to involve 
them in everyday activities. Just recently my grandson s school ini- 
tiated, for the first time, a grandparents' day, a day devoted pri- 
marily to the grandparents and grandchildren. The faculty were 
completely overwhelmed by the grandparents, who came out in 
droves, far exceeding their greatest expectations. It was a marvel- 
ous day. Both grandparents and grandchildren were so excited that 
it brought tears to the eyes of the participants, young and old 
alike. 

I have found that whichever parent has assumed custody, in 
many cases, the noncustodial grandparents are often given a most 
difficult time. Unless you have experienced this personally or if it 
happens in one's family you cannot possibly know the heartaches 
caused by the cruelty, hatred, and vengeance manifested against 
grandparents by some custodial parents. It is unbelievable. This 
became an issue with me almost as a preventative one, while my 
daughter was going through a divorce. Also, a very close friend of 
mine and her husband — would you believe that they had to hide in 
bushes and foliage near the school that their granddaughter at- 
tended just so they could see her. They were not allowed to visit or 
even speak to her. 

My involvement began when I read a newspaper article on the 
subject, which was very apropos. I immediately called the State leg- 
islature in Annapolis in an effort to find what laws the State of 
Maryland had regarding this situation. To my dismay I found that 
there was absolutely nothing on the books relating to grandpar- 
ents. I did find that Hon. Senator Abrams had been sponsoring a 
grandparents' bill since 1975, and every year it was brushed aside 
as not important enough. I then spoke to the senator and offered 
her my assistance. With the aid of my husband, family, and friends 



14 

we then took to the road. We proceeded to get petitions on a 
statewide basis, which I must admit was a very difficult job, espe- 
cially as a daily routine. Fortunately, when people realized what 
was involved, they not only stood and waited to sign, but offered 
help of all kinds. Word spread fast and it was picked up by the 
newspapers and magazines in Baltimore City. The phone kept ring- 
ing continually with offerings to help. A restaurant called and 
asked us to send them petitions for their customers to sign. On the 
day of the hearing of this bill my husband and I rented buses to 
transport people to Annapolis. They filled so quickly that we had a 
cavalcade of cars follow us. 

Mr. BiAGGi. Miss Highto, forgive me for interrupting, but those 
bells control our lives. 

Mrs. Highto. I thought I was getting the gong. 

Mr. BiAGGi. No. The second ringing of those bells means we do 
not have much time, so we will have a temporary recess. We will 
resume as soon as we get back. We want to hear what you have to 
say, although I read what you have to say at 3 o'clock this morn- 
ing. 

[Recess.] 

Mr. BiAGGi. The hearing is called to order. 

Mrs. Highto. 

Mrs. Highto. I left off where I said that a restaurant had called 
us and asked us to send them petitions for their customers to sign. 
I found out later that they too were in the same position. Every- 
time we received several hundred signatures, they were Xeroxed 
and taken to every delegate and senator in Annapolis. It got to the 
point where I walked down that hall, I heard, "Oh, no." 

At this stage of the game the State of Maryland had no laws 
which gave grandparents any legal or moral rights, and absolutely 
no recourse should the custodial parent refuse to allow them to see 
or even to speak to their grandchildren. I can assure you that the 
effect of this upon grandparents is complete devastation. I can 
assure you that you cannot imagine what effect that this would 
have and does have on a young child, especially if the child has 
spent a close loving relationship with his or her grandparents. 
What does a 5-year-old child think when he is suddenly cut off, as 
you sever an umbilical cord, from the most unselfish love he will 
ever know? 

I can think of two of the most difficult and heartrending re- 
marks. How would you feel if your grandchild looked up at you and 
said, "Grandma, why can't I sleep at your house anymore?" What 
can you say to this loving child after he has spent practically half 
of his life at your house? Then after a difficult time trying to 
answer, he bursts into tears and yells, "Nobody cares about me." I 
beg of you, is it not traumatic enough for a young child to be sepa- 
rated from one of his parents without shocking him further by 
alienating him from the unselfish love of his grandparents whom 
he has loved all his short life, thus giving him the feeling that no 
one cares for him. The frustrations of we grandparents are only 
overshadowed by the terrible injustices being done to children all 
over this country. 

We almost faced this tragedy along with countless other grand- 
parents and their grandchildren, who really need each other. How- 



15 

ever, as I stated earlier, Hon. State Senator Abrams, with our help, 
did manage to get the bill passed in the State of Maryland. As of 
now I understand that about 40 States have also passed some form 
of grandparents' visitation rights bill. I have no idea what these 
other States' bills contain, but I do think that if 40 States have 
passed a bill of this type, then the need must be real and on the 
ascension. 

I believe a uniform Federal law should be passed protecting all 
grandparents and their grandchildren regardless of the reasons 
that brought about their children's separation or divorce. As a gen- 
eral rule, grandparents are the last people who want to see their 
children divorced, aiid suffer the most when it does happen. 

I am well aware that many attorneys and judges are afraid that 
these bills will overburden the courts. If this is so, it will only 
prove that something must be done. If this issue really gets out of 
hand, then I strongly suggest that a committee be set up for this 
purpose, and since I have had firsthand knowledge of the situation, 
I would be delighted to serve on such a committee. 

This bill gives the aged their moral rights and the children the 
unconditional love of their grandparents. Please, keep one thing in 
mind, we have chosen you to be our lawmakers, and we live by the 
laws you pass. In a sense, we are your suppliants and you are our 
conscience. If we cannot come to you for succor, then to whom shall 
we go? We are not radicals. We do not advocate radical law 
changes. We are human beings in the twilight of our years seeking 
what little happiness we garner from our grandchildren. 

My personal views on the subject may be redundant to some of 
the above, but, nevertheless, I would like to say that we do not 
wish to overburden the courts but to produce a generation of chil- 
dren who will have real roots and stability. We provide a support 
system and another means of identification when such a trauma 
hits. We as grandparents give the gift of self-worth, the gift of 
caring, the important gift of heritage, the gift of special memories, 
the gift of sharing experiences, and last but by no means least, the 
gift of love and acceptance. A child needs a sense of continuity, es- 
pecially with the divorce rate being upward of 50 percent in this 
country. Let us not forget that we are their roots and do what we 
can to protect them. Remember, for whatever reason a marriage 
terminates, there is no such thing as an ex-grandparent. 

We have already asked God for his help, now we ask you for 
yours. Remember, where would we all be if it were not for our own 
grandparents? There is no love that can replace the very special 
love of the grandparent and the grandchild, and how sad it is for 
the grandchild who never knew or does not remember his grand- 
parents. 

I thank you for your most kind attention. 

Mr. BiAGGi. Mr. Hughes. 

Mr. Hughes. Mr. Chairman, I am pleased to introduce and wel- 
come to the committee my constituents, Mr. and Mrs. Max Cha- 
sens, who have had a terrible, heartrending experience in their 
own right. They have actively pursued visitation rights through 
litigation. They have founded an organization. Equal Rights for 
Grandparents, to try to do something about what is indeed a na- 
tional problem. I am privileged to welcome them here today. 



16 

Mr. Chasens. 

STATEMENT OF MR. AND MRS. MAX CHASENS 

Mr. Chasens. Mr. Chairman, I know all the attention is well 
meaning. Our tale of woe is no different from any other grandpar- 
ent. We lost our daughter, and we do not want to lose our grand- 
daughter. 

I submit in evidence a letter, rather a newspaper clipping, that 
Alice Eckerson wrote. I think it tells the whole story, and I would 
like to 

Mr. Hughes. Mr. Chairman, it is an article written by one of our 
fine reporters for our newspaper circulating in the south Jersey 
area. I ask that it be included in the record. 

[The clipping follows:] 

[From the Press, (Atlantic City) Apr. 13, 1982] 

Grandparents Fight For Visting Rights 

(By Alice Eckerson) 

Courtroom B, 10 a.m.: Lawyers, judge, and litigants are locked in an emotional 
battle over a 7-year-old child. The plaintiff wants to see the child; the defendant, 
who has custody, says no. 

But this is not a custody battle between parents. The plaintiffs in this case are the 
child's grandparents. Like thousands of other grandparents across the country, they 
are not allowed to see their grandchild. Unlike most, however, they are fighting 
that decision in court. 

Max Chasens of Margate is such a grandparent. The retired businessman spent 
seven years in Atlantic County courts and more than $18,000 to get the right to see 
the child of his daughter, Viclu, who died eight years ago. 

"We lost our daughter; we didn't want to lose our grandaughter, too," said Cha- 
sens who filed suit in 1975 after his former son-in-law refused him permission to see 
his granddaughter. After seven years of interim orders for visitation and other court 
actions, the Chasens were granted the right to see their granddaughter, now 10. 

But Chasens is not happy with the decision because it does not set specific times 
for visits. And he thinks it is ridiculous that a grandparent should have to spend 
$18,000 to be allowed to see a grandchild. 

As a result, he founded an organization. Equal Rights for Grandparents (7408 
Ventnor Ave., Margate, 08402), to lobby for laws more favorable to grandparents 
and to help others who have been denied the right to see a grandchild. 

"This is everybody's cause, not just mine," he says. "Not many older people can 
afford the luxury of going to court like I did." 

Like Chasens, angry grandparents in other areas have united in such groups as 
Grandparents Anonymous, Grandparents-Childrens Rights, the Society for Grand- 
parents and the Foundation for Grandparenting. Like Chasens, most activists think 
there should be a uniform national law that spells out specific grandparent visita- 
tion rights. 

Becoming a grandparent is an honored tradition that Superior Court Assignment 
Judge Philip A. Gruccio calls "a blessing." When the expected relationship is imped- 
ed by circumstance or animosity, however, grandparents had no recourse until re- 
cently when they began turning to the courts. 

"We have seen an increasing number of grandparents (coming to court) either be- 
cause of divorce or the death of a parent," Gruccio says. "Generally, they have 
rights and (can have) visitations." 

Pity the poor judge, however, who Solomon-like, must carve up a child's time be- 
tween warring factions that have difficulty passing a civil word between them. The 
best solution, according to District Ck)urt Judge Richard Williams who heard Cha- 
sens' suit, is one worked out not by the judge but by the litigants. 

"When the parents and grandparents fight . . . basically it is the child who gets 
hurt," he said. "The best were can do is choose the course that is least detrimental 
to the child." 

That many older Americans are strangers to their grandchildren is undisputed. 
Often the reason is distance; sometimes it is lifestyle. The primary cause for es- 



17 

trangement between the generations, however, is divorce and death of a natural 
parent. 

The reasons for such decisions vary from honest disagreement about the grand- 
parent's role or behavior to bitterness and mutual dislike. Whatever the reason, the 
results can be tragic both for the grandparents and the child who psychologists say, 
are better off spending time with a grandparent. 

"Something terrific happens between a grandparent and grandkid," says Arthur 
Kornhaber, a New York psychiatrist who wrote "Grandparents/Grandchildren, The 
Vital Connection." "Grandparents add another dimension to their grandchildren's 
lives." 

Grandparents give their grandchildren unadulterated doses of love and care 
which they do not have to earn — a developmental bonus that should not be under- 
rated, Kornhaber says in the book. The good flows two ways, he says, because the 
relationship makes grandparents feel loved and needed when society and their own 
children may no longer need them. 

The doctor feels so strongly that the older and younger generations should be to- 
gether that he sometimes testifies in court for grandparents suing for visitation 
rights. 

"Grandparents and grandchildren have a specific bond between them; is second 
only to the emotional bond between parent and child." he says. And no child should 
have to choose between parents and grandparents. 

"Optimally, grandparents and children should have free access to one another 
and should live nearby," he says. 

He recommends that families who cannot work together get a minimum of 15 
hours of joint counseling. Kornhaber founded the Foundation for Grandparenting 
(R.R. 1 Waccabuc, South Salem N.Y. 10590, 914-736-5478). 

When grandparents are denied access to their grandchildren, the solution, in- 
creasingly, is the courts. No one thinks it's a good solution. 

As one grandfather put it: "How do you regulate love; it's impossible." 

However, a grandparents' "right" varies from state to state and often requires 
money, time and tenacity to enforce — something the reformers want to eliminate. 
Chasens says he spent more than $18,000; another grandfather says he spent $6,000. 

In New Jersey, state law grants visitation rights to the grandparents of a minor 
child whose parent or parents are deceased, divorced or separated. However, that 
law, statute 9:2-7.1, gives the granting of that "right" to the judge who is instructed 
to make that decision "as the best interests of the child may require." This does not 
mean the best interests of the grandparent or parent. 

Still, what's "best for the child?" 

Everyone has a different idea. The dispute may be sincere or may be prompted by 
dislike and distrust between the generations. 

For instance, a mother with custody may deny her ex-husband's parents permis- 
sion to see their grandchildren because she disapproves of their religion, their 
morals or their attitudes. Or she may want revenge for real or imagined insults by 
the parents or her former husband. 

In another case, a widower who remarries may choose to cut all ties with the nat- 
ural mother's family. A step-parent who adopts a child may resent reminders of the 
natural parent. A father may honestly think the grandparents are a poor influence 
on the child. 

Paul D'Amato, an Atlgmtic City attorney, has sympathy for the judges who, in the 
face of rancor and disagreement, must resolve the conflicts. 

"They realize that no matter what happens, no one is going to be happy," he says. 
"If the child or children are mature enough that they can express an opinion, the 
judge will (interview them before deciding). ' 

Because the courts often decide visitation with grandparents is good for the child 
despite the objection of a natural surviving parent, the question becomes how much 
visitation. 

"A couple times a week, overnight, a couple times a month? How much is 
enough? I believe a grandparent should have an active role in the life of a child," 
D'Amato says from the view of his Italian-American heritage. ". . . but not everyone 
agrees with that philosophy. It's a very difficult job that a judge has to determine 
the balancing." 

More than 40 states now have laws giving grandparents specific rights that vary 
from visitation in divorce cases to visitation with the children of a deceased child. 
Some extend the visitation right to other relatives. In some states the law makes it 
clear that adoption does not terminate a grandparent's right to visitation. 

Frequently, only the grandparents who were closest to their grandchildren and, 
therefore, have the most to lose, invoke the law when they are denied access to 



18 

their grandchildren. But, according to Lee Sumpter of Michigan who founded 
Grandparents-Children's Rights Inc., (5728 Bayonne Ave., Haslett, Mich., 48840, 
517-339-8663) many grandparents are afraid to come out of the closet. 

"They are afraid to make waves," he says, "because if they do, they may be 
denied visitation rights altogether." 

Others, he says, are ashamed. 

"They think they are the only people who have the problem." 

Often, these are the grandparents who cared for their grandchildren for months 
or years before a natural mother or father reasserted parental rights and cut off the 
grandparents relationship with the child, Sumpter says. 

"Sometimes, it's a live-in girlfriend or boyfriend who denies visitation. . . . Some- 
times, it's because of a custody fight between parents ... or because of a divorce. . . . 
or they don't let you because somebody looks crosseyed at somebody else." 

Whatever the reasons, the consequences are endured by grandparent and grand- 
child alike. 

"It is slow torture (not being able to see a grandchild)," Chasens says. "Nobody 
knows what it's like. Something should be done for all grandparents." 

Sumpter concedes there are some grandparents who should not be allowed to see 
their grandchildren. 

"But most of them are more than worthy," he says. Kornhaber says dislike be- 
tween grandparent and parent is not a valid reason; only grandparents who are 
mentally ill or very physically ill should be kept from their grandchildren. 

With more and more children being raised in single-parent or step-parent fami- 
lies, the bond between the generations should be encouraged, say the activists for 
grandparent rights. Grandparents and grandchildren, they say, have ever3i;hing to 
gain by being together. 

Mr. Chasens. Nobody makes you a grandparent. You have paid 
your dues to society. When asked in court, we have gone through 
so many pages of deposition, I want to impress you, I have dragged 
this thing from one room to the other, and here it is, almost 15 
pounds of deposition, court orders. We have been in and out of 
court, and it is heartache and aggravation, and has deprived us of 
the most precious thing of our lives, our grandchild and visitation 
rights. 

We have been to Judge Francis, and we had to go there because 
of a letter sent to us by my ex-son-in-law, who remarried and took 
it upon himself to restrict us as far as visitation rights are con- 
cerned. We do not know why. However, we had to go to court, and 
I feel sorry for the people in New Jersey, the visitation rights are 
very, very limited in New Jersey. In fact they are third-rate, and 
we would like to see them updated or something done nationally. 

Judge Francis in his infinite wisdom saw we needed visitation 
rights and he recognized the need for that, and he gave us the first 
Sunday of every month and a telephone call. We got the child from 
10 in the morning until 7 o'clock at night. We had to go back in 
court, and part of the deposition, they violated the court order. We 
went in front of Judge Grucio, a family-oriented man who under- 
stood our plight, and he said there is no evidence where the child is 
unhappy with her grandparents. Instead of fining them monetarily, 
I do not see why the child cannot visit with the Chasens from 4 to 
7:30, and also the first Sunday of every month on a flexible basis. 
That would be on Wednesday, and if this continued, fine. This con- 
tinued for 3y2 years, and this was pendente lite and the trial came 
up 

Mrs. Chasens. It was December and January. It was finished 
January. 

Mr. Chasens. I can say unequivocally, and I have stated in my 
articles, if you are in front of a compassionate judge who under- 



_ -— 19 

stands your plight, I do not care, you can have a young clerk in 
there pleading your case, you will win. I could have had Louis 
Nizer, F. Lee Bailey, Mr. Garrison, and I went in front of a young 
judge, Richard Williams, and he did not understand our situation. 
He could not hang his hat on anything in the New Jersey law. All 
the pleadings and animosities that went on between us and the ex- 
son-in-law and the new mother, it is ridiculous. 

In deposition my attorney came up and said, "What is your feel- 
ing, Mr. Baylon, as far as the Chasens are concerned? You said in 
1976 you did not care whether they live or die." It did not bother 
the judge. On deposition again he said, "How do you feel about 
them today." My ex-son-in-law said, "If I saw their names in an 
obituary column it would not bother me." 

Now, you cannot use a child as chattel. First and foremost, we 
must be gentleman and ladies, law-abiding citizens, honest, sincere, 
with the utmost respect for human dignities. Otherwise you cannot 
be a judge. I served in the Army. I took my orders, but if this is 
what our courts do and this is what we have to go through as 
grandparents, the fabric of our society is going to decay. It seems it 
is good against evil, and evil prevails. We have to go to court time 
and time again. It is not right. 

I feel sorry for those people who cannot afford the money to 
squander for courts and court orders. We could have made an 
appeal, $8,000 more. Who in the United States, who in this country 
would challenge people, and I am sure people of lesser means love 
their grandchildren almost as much as we do. The cruelty that we 
went through and the humiliation is a sin against God and coun- 
try. I can see it no other way. 

It is mental cruelty, child abuse, all these things have been rep- 
etitions. The chairman stated most of them. The other people on 
the panel will give you the same song, it is cruel. But the worst 
part of it is this is what your life is about. I have been in business, 
lost money and made money that rightfully belongs to me. I should 
not have to go to court and be deprived of my bloodline. We are 
victims of the feelings and emotions of one judge against another. 
That is why we are here today, to solve this problem. 

We pray we set an example here for all grandparents. Every 
time a child is born, so is a grandparent. There is no denying that 
she loves us and we love her. It is part of our heritage. 

I made a chart. I asked what is your idea of a grandparent. 
When you are a parent it is 80 percent work and 20 percent pleas- 
ure. When you finally achieve the blessing of being a grandparent, 
it is a blessing, but to be a great-grandparent is a miracle. 

My mother-in-law was 81, passed away recently, could not have 
the pleasure of seeing her great-granddaughter. Now that is cruel. 
You can do many things, but the fact that you have something that 
you cherish and you see and it reflects in your life and your being, 
you should not be deprived of it. We represent all grandparents 
and are making a plea on their behalf. It is a moving subject. I do 
not know how I could empty my heart out to you people anymore. 
It just takes a judge with kindness, consideration, that is all you 
need. Ninety-nine percent of the people agree yes, I never heard of 
anything like this. And as I say to you, we do not have a patent on 
brains, I do not think you have, but somewhere, somehow, some- 



20 

body has a better solution than 15 pounds of deposition, $18,000, 
court costs, aggravation — you do not know what it means. Every 
time we had to go on a court order, the child was supposed to be 
there on Wednesday. If I saw her away from home at school, we 
were punished. The child was instructed to run away. The child is 
happy with us. I am making this appeal on behalf of all grandpar- 
ents. We are not selfish. It is 8 years of aggravation, we advanced 
backwards because of the Jersey law. God bless you in your efforts. 

Mr. BiAGGi. Once again we have a short recess. I tell you, Mr. 
Chasens, we are aware. I think Mr. Lantos said it clearly. We are 
not here with open minds in a sense, we are here to find a solution. 
We know the problem. I will tell you this, I have been here 14 
years, and this is the most emotionally strenuous hearing that I 
have ever participated in, and I just do not look forward to hearing 
the rest of the testimony, frankly. I will be here, but I do not look 
forward to it. 

Mr. Chasens. May I apologize? 

Mr. BiAGGi. No need to apologize. 

Mr. Chasens. If I have said anything 

Mr. BiAGGi. You do not have to apologize. You said it most elo- 
quently and most impressively. 

[Recess.] 

Mr. BiAGGi. Mr. and Mrs. Lee Sumpter. 

STATEMENT OF MR. AND MRS. LEE SUMPTER 

Mr. Sumpter. Mr. Chairman, members of the committee, we 
deeply appreciate the honor you have given us today. I have tried 
to answer the information that was given to us in a letter and 
avoided repeating what we sent to you beforehand, so there will 
not be much repetition here. 

Grandparents — Children's Rights, Inc. was incorporated on July 
8, 1981, by Lee and Lucile Sumpter, and an interested grandmother 
who does not have a visitation problem. It is a nonprofit Michigan 
corporation. 

Its goals are to seek adequate laws to protect the visitation rights 
of grandparents and children in every State, and to organize active 
contact groups in each State to work for a national children's 
rights law. 

It gathers information to share with concerned grandparents and 
others in the 50 States. To date we have received 844 letters or 
telephone calls from 48 States. One grandmother telephoned from 
Ontario, Canada, and a father wrote from Venezuela. 

There are no rules or dues involved, and we are usually available 
24 hours every day. 

We have been contacted by 42 organizations, television networks, 
radio stations, local and national newspapers and magazines. 

The Family Weekly article, "Visitation Rights for Grandpar- 
ents," written by Roslyn Kramer and Dolores Walker that was 
published in the western States on November 29, 1981, and again 
in the remaining States on December 27, 1981, caused us to receive 
652 letters and telephone calls. 

I will divert to the map here. It seems everybody wants to know 
what it is all about. I started that because of the Family Weekly 



21 

article and as time went on I added more pins to represent the 
number of letters we have received from other grandparents not 
connected necessarily with the article, and there are 844-some-odd 
pins in that map. As of the Family Weekly article, California led 
the pack with about 70 letters, and Michigan was second. I do not 
have all the pins in the map that indicate the number of grandpar- 
ents who have a problem from Michigan, because there really 
would not be enough room for the map. There are about 200 of 
them. I wanted to apologize to Mr. Hughes because I had to put 
him out in the Atlantic Ocean. New Jersey was not big enough to 
represent everyone. 

The blue pins indicate States who do not have visitation laws, in- 
cluding Washington, D.C., right here. 

I have just been handed a document from the Family Law Re- 
porter representative who says that five more States have enacted 
laws of some kind, so that makes 45 States who have laws, and 7 
who do not. No, five who do not. I will continue with my testimony 
here. 

Thousands of children have been placed in the care of paternal 
or maternal grandparents from x number of months to x number 
of years by parents who could not look after their children for 
many reasons. The children and their grandparents develop a close 
and loving relationship. 

One form of abuse is when these children are suddenly uprooted 
from a secure environment and they are placed in a strange and 
insecure situation. They are almost immediately prohibited from 
associating with their grandparents in any way. The grandparents 
have reached a point in their lives where the denial of seeing a 
grandchild is an emotional trauma. It is usually unexpected, unex- 
plained, and indefensible. The children are confused because they 
do not understand why they cannot see or talk to their grandpar- 
ents. They develop mental and emotional problems because they 
cannot fight back, and they have no one to defend them. There is 
no place for a young child to go to for help. 

Grandparents can readily detect child abuse, and they could pre- 
vent much of it if social service agencies and child abuse centers 
would respect their reports. Courts habitually place abused chil- 
dren in foster homes rather than with grandparents with whom 
the children desire to live. The courts usually claim that the grand- 
parents are too old to look after the children, yet these same grand- 
parents were not too old to babysit for free for years. 

The denial of visitation or token visitation with humiliating limi- 
tations destroys all semblance of family life. All relatives are af- 
fected — parents, children, grandparents, aunts, uncles, cousins, and 
even close friends. It affects your mental processes, health, and 
ability to function normally. Unless you have personally experi- 
enced this heartbreaking phenomenon, you cannot understand or 
comprehend the extent of the damage it causes. Peace must begin 
with people — children are people. What is their adult generation 
going to be like when child abuse is at an epidemic level now? 

Any involved grandparent will gladly tell you their problem in a 
private conversation. If many of them go public there are several 
things that might happen: 



22 

One, it will harm their litigation if they are fortunate enough to 
be engaged in such. 

Two, if they have any visitation at all, it will be cut off, and they 
are so informed. 

Three, if they do not have any visitation, they know that they 
will never obtain visitation if "they make waves." 

Four, many parents inform the grandparents that they will leave 
the State if any effort is made to get visitation. Many parents do 
move to States that do not have adequate laws. 

I believe that reciprocity is not common in very many States, 
hence a national law would indeed help if each State elects to 
adopt it. All of our knowledge about this problem comes froni per- 
sonal experiences in our family, in the families of our close friends, 
and from the hundreds of grandparents who have written to us. All 
of the problems are similar — some are more heartbreaking than 
others. We will not stop striving for normal relations between 
grandparents and their grandchildren and other children's right 
until we get too old to work or run out of money. 

We have received letters on the same day from Maine, Florida, 
California, Washington. These people did not know each other, 
they did not know they were writing us or writing anybody else for 
that matter, but the story is the same, Kansas, Missouri, anywhere 
you go, the letters read the same. 

Grandparents, who have been informed about the hearings that 
are being held this morning, hope and pray that an adequate na- 
tional law will be enacted soon enough for them to celebrate a 
merry Christmas with their grandchildren before they are too old 
to share this blessed holiday. Many grandparents are even denied 
the right to send cards or gifts to their grandchildren. 

How would you feel if you were told that you could see your only 
grandchild for 2 or 3 hours on Christmas Eve— that it can never 
come back to your house, yet that same parent has placed this 
child in your care for 5 of its 10 years on this Earth? The grand- 
child lives 500 miles away from you, and the parent expects some- 
body to drive that far for 2 or 3 hours on Christmas Eve. 

Thank you, sir. 

Mr. BiAGGi. Thank you. 

[The prepared statement with attachments of Mr. and Mrs. 
Sumpter follows:] 

Prepared Statement of Mr. and Mrs. Lee Sumpter, Grandparents— Children's 

Rights, Inc., Haslett, Mich. 

Grandparents are and always have been a vital link in our society. They are the 
unwritten history of our families, towns, states and nation. They are the unrecog- 
nized therapy that our children need. They are the safety valves for the troubled 
families, and the cheering section for everyone's progress. Grandma and Grandpa 
are the repository for tall tales, good advice, dubious guidance depending on who 
asks for what and under what circumstances. 

Our very limited experience with grandparenting has shown us that grandparents 
are very disturbed if they do not or can not function in this rightful role. I strees 
rightful simply because we believe that grandparenting is a Right and not a privi- 
lege. The judiciary in our country does not have a very good concept of the rights of 
grandparents. After reading many case histories of grandparent visitation court de- 
cisions, gathering information from hundreds of letters and comparing similar expe- 
riences with other concerned grandparents across the states, the courts strongly 
agree that grandparents have no rights. 



I 



23 

How much of this heartbreaking dilemma that has been created is our fault? We 
choose to believe that the majority of the grandparents have been unjustly denied 
the right to visit their grandchildren. Dr. Arthur Kornhaber, co-author of "Grand- 
parents — Grandchildren, The Vital Connection", has evidence that some grandpar- 
ents do not care to see their grandchildren, and this is very difficult for us to under- 
stand, but we do admit there are grandparents who should not associate with their 
grandchildren because they do upset the equilibrium of families and they create 
senseless problems. Time, distance and economic play a big part in restricting fre- 
quent visitation, and anyone can accept those reasons for not being able to visit 
grandchildren. 

We must establish a basis for our visitation problems. A child is brought into the 
world, and normally both parents share their love with it. Because of death, divorce 
or separation, one parent is gone. The remaining parent takes the child to live in 
the home of maternal or paternal grandparents where they may remain for months 
or for several years. Because the parent may be away during most of the child's 
waking hours of the day, the child will develop a secure and loving relationship 
with its grandparents who care for it. Later the parent will take the child to live 
with a step-parent or a live-in girl or boy friend. The step-parent or friend will 
decide that the child is not to visit the grandparents anymore. "Why", you ask? We 
do not know. They do not know, or they will not tell you. We believe that they are 
jealous of the child's love for the grandparents. The parents are insecure and imma- 
ture. In many cases they are self-centered, selfish, egotistical and mentally ill. 'They 
have no deep love for the child, and do not care that it is being deprived of a loving 
relationship with its grandparents. The child has no rights either. 

We have developed several categories of grandparents who are being denied visi- 
tation with their grandchildren. Circumstances are created which lead to denial 
based on divorce, death of one parent, a custody battle with one parent denying one 
or both sets of grandparents, live-in partners deying one or both sets of grandpar- 
ents, outright denial of visitation without any reason, and cult membership. The 
step-parent adoption is the most vicious because judges are telling the grandparents 
the children have too many grandparents, or that, they the grandparents have no 
rights. These grandchildren are the blood relatives of the grandparents. 

There are three stages grandparents involuntarily experience when told the glori- 
ous news "You can't see them anymore." You are shocked, really can't believe what 
you are hearing. Especially if you have had a loving relationship with the child for 
X number of months or years. Next, self-pity sets in, or what did I do to my children 
to make them treat me this way? After you realize that you did not do anything, 
you get angry. This anger becomes a permanent state of mind. It will not go away, 
and it is not a hate feeling, but a seething frustration. Every time another confron- 
tation occurs, that incident merely fuels the anger. 

We have a very difficult time finding grandparents with a visitation problem. 
Many are reluctant to speak about it because it is a family problem, they are 
ashamed of it. Many do not consider that anybody else could have the problem. And 
third, if they are having any contact with the children at all, they are afraid that if 
they make waves they will be cut-off completely. We have been told this by lots of 
grandparents. Grandparents cannot go public, cannot go to court, and in the process 
go through considerable humiliation at the hands of their children. These parents 
grew up in the sixties and seventies. They want it all their way, want it now, and 
finally realize that adulthood is too much for them. The run the full range of 
mental disorders from chronic manic depressives, to schizophrenics, to paranoids, 
and ego maniacal selfish immature people. 

The grandparent visitation problem is a national disgrace. Forty states have laws 
in varying degrees allowing grandparents access to courts to petition for visitation. 
We have copies of all forty state laws and are constantly updating them. In the past 
four years, eighteen states have passed legislation in some form. Dr. Kornhaber rec- 
ommends mediation on a mandatory basis of eighteen to twenty-four months. We 
know that this is the best solution. The courts do not have the expertise to handle 
family matters. Divorce, yes for the adults, but who thinks or cares about the chil- 
dren. The mediation recommended must be backed by law, required by law, and ad- 
ministered by the law. Grandparents are ignored by the judiciary. Parents lose their 
children and grandparents are not allowed to adopt, have custody, or even visit. The 
worst circumstance is adoption by step-parents. Many state laws prohibit grandpar- 
ent visitation after adoption. Children that are being emotionally, mentally, phys- 
ically and sexually abused are usually being denied the right to see their grandpar- 
ents. Children as young as 4 or 5 years old try to run away to the homes of their 
grandparents for safety. Younger children are also committing suicide. 



24 

The mediation panel would consist of professional people in the medical, social 
sciences, and mental health fields. We might have to launch the concept as an ad- 
junct to a court. The children would certainly be a part of the process. 

The state laws dealing with visitation are widely divergent. Some allow for visita- 
tion based on the death of a parent, a custody case, or in a divorce. Some states 
combine all of these in one law. One state allows grandparents a voice in the adop- 
tion procedure. Pennsylvania has a law to cover all categories of grandparents men- 
tioned earlier, and for all situations now prohibiting visitation. Delaware has five 
sentences in its law, and it covers the entire problem. 

Grandparents-Children's Rights, Inc. is actively assisting involved grandparents in 
each state to seek adequate laws to protect the visitation rights of grandparents and 
children, and to organize active contact groups in each state to work for a national 
children's rights law. A national mailing list is being compiled to allow grandpar- 
ents to share information. We must be able to communicate with one another across 
town, county, state and nation. We have received 820 letters and telephone calls 
from grandparents, 94 letters from professional persons and others who are interest- 
ed in this problem. Eight negative letters have been received from parents and 
others who resent what we are doing. If we are to have a national law, we will need 
much help from concerned grandparents and their friends in every state to lobby 
for this badly needed law. As we travel in different states, we call grandparents who 
have not added their names to the mailing lists, and we also talk with those who 
are against visitation laws. We need one contact leader in each state. One grand- 
mother in Illinois worked alone for two and one-half years to lobby for a law before 
she found out there were 40 more grandparents in Illinois who had similar prob- 
lems. It will take much time, effort and money to obtain a national law, and every 
grandparent is indebted to Dr. and Mrs. Kornhaber for the time, work and money 
that they have donated to this problem and for founding the Foundation for Grand- 
parenting. 

I would like to close by telling about a young mother who lives in Detroit. She 
telephoned us to please find some grandparents who would allow her to legally 
adopt them for her three small children. She also wanted the name of a lawyer who 
would take her case. The children's natural grandparents did not want to be both- 
ered with their own grandchildren. We have sent letters to the Michigan mailing 
list to try to find grandparents for those children. 



25 



D'-cember 1982 

ThiB compilation Indicates the categories that grandparents nay 
petition their state courts for visitation rights otherwise denied to 
them by members of their immediate family or by others. 

I. Reasonable visitation rights of any maternal or paternal 
grandparents. 

1. Connecticut A. New York 

2. Delaware 5. West Virginia 

3. Idaho 6. Pennsylvania 



II. 



III. 



The court has jurisdiction to grant visitation privileges 
to grandparents or to anyone else when it deems such 
privileges are appropriate. 



1. Hawaii 

2. Missouri 

3. J.'evada 

4. Ohio 



5. South Carolina * 

6. Utah 

7. Virginia * 

8. Washington 



Visitation rights of grandparents involved with death, 
divorce or custody. 



IV. 



1. 


Alabama 


10. 


Iowa 


19. 


New Mexico 


2. 


Alaska 


11. 


Kansas * 


20. 


North Carolina * 


3. 


Arkansas 


12. 


Louisiana * 


21. 


Oklahoma • 


A. 


California 


13. 


Maryland * 


22. 


Oregon 


5. 


Colorado 


14. 


Michigan 


23. 


Rhode Island 


6. 


Florida * 


15. 


Minnesota 


2A. 


Tennessee 


7. 


Georgia * 


16. 


Montana 


25. 


Texas 


8. 


Illinois '* 


17. 


New Hampshire 


26. 


Wisconsin 


9. 


Indiana * 


18. 


New Jersey 







Pending legislation 

1. Arizona 

(Maine and Mississippi plan to introduce grandparent 
visitation bills in January, 1983-) 

No laws or pending legislation. 



1. Kentucky 

2. Maine 

3. Massachusetts 
A. Nebraska 

5. North Dakota 



6. South Dakota 

7. Vermont 

8. Wyoming 

9- Mississippi 

10. Washington, D.C. 



^Improved a law in I98I or 1982 
If you need a copy of the law, write to: 



might 



Ask for a copy of any law or pending legislation that 
. have concerning the visitation rights of grandparents. 



26 



GRA\'DPAREriT3 -- CHILDREl^l'S RIGIITS, irJC. 
5728 Bayonne Avenue 
Haslctt, Michlp;an A8840 



Contacts 



Arkansas 



Sharon Pallone, L.H.D. 

SCAN AMERICA, I!JC. ( Suspected Child Abuse and Neglect) 

P.O. Box 74A5 

Little Rock, Arkansas 72217 

l-BOO-6'!43-&7£''4 

California 

Vivian Doering 

King Features Syndicate 

P.C. Box 591 

Sscondido, California 92025 

7H_72,6-0970 

Ed Klostcr 

"Fa-nily Circle Magazine" 

1196 Hamilton Avenue 

Palo Alto, California 9^301 

9I6-567-IO89 

Gerald Tellers 

c/o Family Counseling Services of the Superior Court of California 
325 S. Melrose Avenue Mr. Tellers wrote: "l had never heard 
Vista, California 92083 about this problem until I read the 
71-^-758-6526 "Family Weekly" article. (87 letters and 

telephone calls have been from Calif. ) 



Stepfamily Association of America, Inc. 

900 Welch Road, Suite AOO or 3001 porter Street, N.W, 
Palo Alto, California 9^504 Washington, D.C. 20008 
415-328-0723 202-966-1258 



No. 101 



Colorado 



Margaret Carlln 
Rocky_Mouj2taln_NewB 
Denver, Colorado 
303-892-5321 

Barbara ?.1cCornack 

Dept. of Human Development and Family Studies 

Colorado State University 

Fort Collins, Colorado 8O523 

Dave Siriani 

Fathers for Equal Rights 

3016 Ivy 

Denver, Colorado 80207 

303-333-3773 



27 



■Vanhi:ir*>»-.n, D.C. 

Helra R. Graham 

National Committee for Adootion 

Suits 326 

1346 Connecticut Avenue M.W. 

Washington , D.C. 200^6 

202-463-7559 

Georgia 

I;!iko Goldgar 
Grandnarents Day 
P.O. Pox 490022 
Atlanta, Georgia 30349 
404-457-9662 

Illinois 

Phil Donahue Segment of the Today Show 

c/o W G N - TV, Attention Shcri Singer, Producer 

2501 Bradley place 

Chicago, Illinois 6O6I8 

312-883-3427 

The Honorable Donald W. Dean 
State Representative 
426 South John Street 
Bloomfield, Indiana 47424 

Kansas 

The Honorable Anita Niles 

State Representative 

Route 2 

Lebo, Kansas 66856 

316-256-6262 

Massachusetts 

Massachusetts Parents Anonymous 

Statewide Resource Office 

120 Boylston Street 

Boston, Mass. 02116 

800-882-1250 (Toll free only in iilass.) 

617-482-4695 c/o Julie 

Michigan 

Gene B. Wilson, Director 
Ann Arbor Public Library 
343 S. Fifth Avenue 
Ann Arbor, Michigan 48104 
313-994-2333 

Margaret Bubolz, Ph.D. 
College of Human Ecology 
Michigan State University 
East Lansing, Mich. 48824 



28 



■;.■■. I. L.D. (A Conmlttee to l^elp Institutions Litigate Divorce. Tho 

=ob Allers, Ph.D., ChairoGrson primary concern is v;ith the 

S770 Jewell " best interest of the Chi_la) 
Co:nstock Park, i.'ichlran 49A21 

Luella Davison 
C-randDarents Anonymous 
536 V/'. Huron 
pontiac, ".'Ich. 48053 

FATHERS FOR r;QUAL RIGHTS OF A.'>!SRICA, IMC. 

Alan Z. Lebow, Executive Director 
'.Vayne-Cakland-Macomb Chapter 
30233 Southfield Road, Room 208 
Southfield, Michigan 48076 
313-354-3080 

"K I N D E R" (Kids in >3eed Demand Equal Rights) 
Renee' patten , 
177 Lincoln Court 
Rockford, Michigan 49341 
616-866-0441 (8:00 A.M. to 3:00 P.M.) 

Mrs. Leslie Campbell (Parent of a Snatched Child) 

S.W. Iv'ichifran Friend of Child Find 

10937 Red Arrow Hv;y. 

Mat taw an, Mich. 49071 

616-668-3733 

Phyllis C. ycMillen 

Attorney at Law 

Senior Citizen's Law Center 

C-enesee County Legal Aid Society 

352 S. Saginaw street 4th. Floor 

Flint, yich. 48502 

313-234-2621 

Vewsweek 

"Tr. Gibney, Detroit, Mich. 

313-259-4833 

OSA (Office of Services to the Aging 
300 E. r.'.ichipan 
P.O. 30X 30026 
Lansing, Mich. 48909 

5TEPFAMILY ASSOCIATIOt! OF MICHIGAN-OAKLAND COUNTY, INC. 
1366\'. Fairview Lane 
Rochester, Mich. 49063 
313-642-2340 

Gary Stollak, Ph.D. 
Department of Psychology 
129 Snyder Hall 
Michigan State University 
East Lansing, Mich. 48824 



29 



'.VDI"-XBC Sonya 
622 S.W. Lafayett 
Detroit, •.'ichifran 48251 
313-222-0AA2 

WJIM - Radio The interview and WJIK - TV 
2820 E. Saginaw 
Lansing, Mich. 4890A 

WIE^.I - TV 

Ellen E. Jones, Mews Reporter (Tape available) 

Broadcasting Division, Weredith Corp. 

P.O. Pox 551 

Sacinaw, :.'ich. -'+8606 

517-755-8191 

WUC:-,5-TV Day By Day, Andy Rapp 

Delta College 

University Center, I/.ich. 48710 

'.VXYZ - TV Kelly and Conr.any 
20777 W. 10 Wile 
Southfield, Mich. 48057 
515-827-7777 

Ohio 

Pauletta Bro.vn, Director 

Dept. for the Elderly 

Catholic Social Services, Diocese of Toledo 

1955 Sriielbush Ave. 

Toledo, Ohio 45624 

419-244-6711 

Cheryl Jensen, writes a weekly column, "Caring" , for ^^^ plain^_pealer 
12700 Lake Avenue, ,-72205 in Cleveland, Chio 
Lakewood, Chio 44107 
216-226-8990 

IJew Jersey 

Alice Eckerson 

Atlantic City press 

Devin Lajie 

Pleasantville, New Jersey 08252 

Ken Paulson 

Courier 'Jews 

Brid^ev.ater , Mew Jersey 08807 

201-722-8800 

new York 

Peggy Clausen Jody Abramson 

H e.7 3v;cek Newsv;eek TV 

T^ZTZT^iadison Avenue 212-350-1969 

Mew York, N.Y. 10022 
212-550-2507 



30 



Tjnnise Decker 

Senate Reaearcli f:'.:i'VLce 

Senate chamber 

State Capitol 

Albany, Nev; York 12247 

5I8-A55-2139 

Linda Villarosa, Research La>v section--"Visitation Rights 

F amily Weekly, Inc. For Grandparents" (11-29-31 and 

The Newspaper Magazine 12-27-Sl), written by Dolores 

6^1 Lexington, Ave. Hew York, N.Y. 10022 Walker, Esq. and Roslyn 
212-980-0500 Kramer 

Dr. and Mrs. Arthur Kornhabcr 

FOUNDATION FOR CRANDP^;^'■■;^JTI\'G 

10 West Hyatt Avenue 

Mt. Kisco, Mew York IO5A9 

91A-2A1-0682 

Pennsylvania 

FACE (Fathers' and Children's Equality) 
District VII, York County Chapter 
Hr. Elmer Lvle, jr., President 
P.O. Box 933 
York, Penn. I7AO5 

Texas 

Sterling Municipal Library, :-,:rs. :,;ervin Rosenbaum 
Public Library Avenue 
Bay town, Texas 77520 
A27-7331 

TEXAS FATHERS FOR EQUAL RIGHTS Grandparents write to: 

Wives and Grandparents Coalition Hr. and Mrs. Thomas M. Hughes 
San Antonio Chapter 607 W. Gerald 

P.O. Box 3AOI7I San Antonio-, Texas 78221 

San Antonio, Texas 7823A 512-922-559A 

512-653-2669 (2A hr. service) (Self-addressed, stamped, 

legal size envelopes are 
requested, please) 



31 



!;:a';y of the parents who deny visitation rights to the 
cra'idparents of their children belong to "this new 

GEl'JERATICN". 

ri^\^S NbWS n-3i1'SI l^a^r^^^^f-^r^Sj^^^^ ^K^t'A. 

Baby boom casualties 



By AL ROSSITER 

Vniled Pro' International 

The children of the post-war 
baby boom have come of age 
and health authorities report 
the increase in young adults in 
the United States is accompa- 
nied by a new generation of se- 
verely mentally ill young 
people. 

This new generation of men- 
tally ill has been described as a 
rootless, unemployed class who 
use alcohol and other drugs 
heavily and who strongly resist 
help. 

Many of them have 

never seen the inside of a men- 
tal hospital and are more likely 
to call themselves social casual- 
ties than victims of mental ill- 
nesses or personality disorders, 
aaording to Dr. Bert Pepper, 
director of the Rockland County 
(N.Y.) Community Mental 
Health Center. 

He said these patients in 
their 20s and 30s have a variety 



of diagnoses but share many of 
the same problems — their vul- 
nerability to stress, their diffi- 
culty in making stable 
relationships, their inability to 
get and keep something good in 
their lives and their repeated 
failures of judgmeiit. 

"Most have been able to make 
only transient, unstable, unsat- 
isfactory relationships with peo- 
ple their own age," Pepper 
wrote in the current issue of 
llotpilal & Community Piychia- 
try. "Their friends and lovers 
are often other marginally 
functional people with equally 
uneven life courses and du- 
bious prognoses." 

Pepper, who also is pro 
fessor of psychiatry at New 
York University School pf Medi- 
cine, said since many of these 
mentally ill young people do not 
view themselves as patients, 
they are reluctant to acknowl- 
edge a need for treatment. 

He said they are just as likely 
to blame mental health profes- 
sionals for their problems as 
they are to turn to them for 
help. . 



Pepper said a review of 900 
patients seen in a three-monlh' 
period last year at the Rockland 
County center indicated thai 
294 were members of a group 
called chronic young adull pa-- 
tients. Fifty-seven percent were 
diagnosed as schizophrenic and 
7 percent were manic depres- 
sive. The others had personality 
or behavior disorders, neuroses, 
drug or alcohol dependence and' 
other disorders. 

"We estimate that for every 
dysfunctional young adult we 
see, there are two to 10 in the 
community who never arrive al 
our doorstep but are hidden in 
dysfunctional families or in 
jails, or wander unnoticed on 
city streets," Pepper said. 

Of those who arc seen 
in mental health centers, he 
said few show marked im- 
provement. 

"Instead they become, mvi- 
dually and collectively, our alba- 
tross. They are functioning 
persons only in the marginal 
sense. They manage their lives 
tenuously at best and disas- 
trously at worst." 



O't'TH.^O^ 



Tlioo^^ Uj2^Xf//f^7 7c^«iyyj«»ii, TS-^i-rt.. 31>6 6;l 



32 

Mr. BiAGGi. Mr. and Mrs. Kudler. 

STATEMENT OF MR. AND MRS. HARVEY KUDLER 

Mr. Kudler. Members of the committee, 2,700 years ago King 
Solomon made a pilgrimage to Gibeon. He "asked of God the gift of 
an understanding heart so that he could judge well between good 
and evil." We all know how well God granted that request. When 
Solomon decided which of the two women who came to him — in a 
dispute over a baby — was the true mother, his decision made the 
King's name synonymous for all time with the word "wisdom." 

Today, my wife and I come before this committee with a horror 
story involving our legal rights as grandparents to visit with our 
dead daughter Judy's two children, Brian, 13, and Vanessa, 10. 
These children have been abducted by their natural father in 1979 
from New York, where we had been granted visitation rights by 
the State supreme court, to Colorado, where we have been stripped 
of our New York State visitation rights, in defiance of both State 
and Federal law. We have not been allowed to see, talk to, nor 
write to our grandchildren for more than 3 years. 

We think you Members of Congress are as wise as Solomon and 
that you will cut through the chains of redtape that keep a genera- 
tion of suffering grandchildren apart from their grieving grandpar- 
ents. 

The problem we bring you is nationwide, involving what the New 
York Times described as the child-snatching of 100,000 children a 
year. 

I show the committee a number of petitions we have brought 
here from Queens County. They total 553 signatures. Each bears 
the relationship of the signer to a child. They include many grand- 
parents, parents, friends, rabbis, and teachers: people who know 
and love children. In fact, my wife and I and our friends have not 
yet met a single person who would not sign our petition to Con- 
gressman Biaggi and this committee asking that grandparents' visi- 
tation rights be enforced on a national level. 

What we bring you is one family's story. But in the past 3 years 
we have received letters, mail, and phone calls from dozens, if not 
hundreds, of grandparents and other relatives across the country 
who share our problem and our pain. 

In the past 5 years my wife and I have appeared in 10 different 
courts in two States and the District of Columbia fighting for our 
visitation rights and our grandchildren's rights. We intend to con- 
tinue to fight until our problem and those of other unfortunate 
grandparents are solved here in Washington. 

We estimate that these court struggles have cost us more than 
$60,000 to date. We are in debt. I am an English teacher in a New 
York City junior high school. In 1980 I borrowed $5,000 from my 
pension fund to pay a New York attorney who was representing 
the children in a Federal suit. Every paycheck we received for the 
past 3 years has included a $35 weekly deduction to pay off this 
loan. We owe attorneys an additional $7,000, and we have received 
bills every month for the past 3 years. At present we cannot afford 
an attorney. 



33 

We are not alone. We know a retired railroad worker in Pennsyl- 
vania, a grandparent, in the same predicament, who spent his life 
savings in a similar struggle, and he still cannot visit with his only 
granddaughter. This man's daughter, like our daughter, Judy, is 
also deceased. 

You cannot measure the anguish and psychological distress we 
have suffered, knowing that we are being forcibly kept by a Colora- 
do court ruling from our New York visitation rights. We fear for 
our grandchildren's psychological and physical well-being, as we 
learn they are constantly "punished," including being beaten with 
a belt, by their natural father. 

We welcome this opportunity to testify here today, for we feel 
the answer to this national problem is here in Washington with 
the Congress and with Mrs. Nancy Reagan and her foster grand- 
parents program and her personal influence — with the U.S. Attor- 
ney General, William French Smith, and the Justice Department's 
refusal to enforce the Federal Parental Kidnaping Prevention Act 
of 1980 passed by the Congress, but not enforced but for one case 
we have read of out of hundreds of thousands. 

Here is what happened to us. Our late daughter Judy, 18, and 
her husband, Mallory Smith, 19, married in 1968. Mallory had a 
felony drug conviction in Nev/ York. He served 4y2 years on proba- 
tion for selling LSD to an undercover policeman. He also had other 
arrests. Two children were born of this marriage: Brian, in 1969, 
and Vanessa, in 1972. I have a picture of these children. 

Mr. BiAGGi. Bring that up here. 

Mr. KuDLER. Take the picture up to the Congressman, Marcia. 

Mr. BiAGGi. When did you see them last? 

Mr. KuDLER. Three years ago, just about this time, for a few min- 
utes in Colorado. I am going to tell you about that. 

In 1974 the couple separated. We took the children into our 
home. Mallory even called me one night and told me that if I did 
not take the children into my home he would put them into a 
foster home. 

We took the children and raised them for 5 years. We were given 
legal custody — with the consent of both parents. Two years later, 
Judy died by suicide. The following year Mallory remarried. He 
took us into a different court and eventually was given custody, al- 
though the court-appointed psychiatrist wrote the judge that Mal- 
lory had a personality disorder and should not be given the chil- 
dren. Dr. Brodsky testified that my wife and I had now become the 
psychological parents of Brian and Vanessa. The judge also ruled 
that, although the children told him they wanted to remain with 
us, he did not care what they said. 

Mr. BiAGGi. How old was the judge, roughly? 

Mr. KuDLER. Judge Angelo B. Graci was approximately 60 years 
old. 

Mr. BiAGGi. I wanted to see if it followed Mr. Chasens' testimony. 

Mr. KuDLER. Approximately 60 years old. 

Judge Graci granted my wife and me visitation rights every 
other Sunday from 10 to 6. Within 3 months of taking custody, 
Mallory prepared to flee New York State. A hearing was held. He 
swore to Judge Kunzeman that he would return after a brief vaca- 
tion of 6 weeks, and he would give us 5 full days with the children. 



34 

The judge believed him. That night Mallory fled the State, taking 
the children out of school — in a motor home — and vanishing. 

We found him by the use of private detectives in Denver, Colo., 
in December 1979. We now had a warrant for his arrest, in New 
York, from Judge Kunzeman. It is still good. 

This time, Mallory swore in Denver that he would let the chil- 
dren visit us in New York. The judge allowed us 4 hours with 
them, and that was the last time we saw Brian and Vanessa. One 
attorney, in Denver, suggested we "kidnap" the children, but we 
said we had "clean hands" and we believed in the law. 

A hearing was held in one day in Denver on June 13, 1980. Mal- 
lory lied to the judge about his address. We found that out after 
the trial, of course. He swore that my wife and I were anti-Catho- 
lic, antiblack, too intellectual, antisports, and were upsetting to 
Brian and Vanessa. The judge believed him. I have been teaching 
in New York City schools for 21 years, in the same school for 20 
years. I hold a Ph. D. in English from St. John's University. I was 
active too in scouting for 12 years. 

There were no other witnesses against us except Mallory and his 
wife. There were no documents submitted in evidence, no corrobo- 
ration of any kind. Yet the Denver judge refused to recognize our 
New York warrant for Mallory's arrest. He told us to leave Denver 
and to give up all communication and contact with the children. 
Mallory's new wife has parents. The judge told us that Brian and 
Vanessa now had new grandparents and to forget about the chil- 
dren. We appealed for our visitation rights through the Colorado 
courts and then to the U.S. Supreme Court, asking that our New 
York visitation rights be honored under the full-faith-and-credit 
clause of the U.S. Constitution. We also cited Public Law 96-611. 
Two months ago the U.S. Supreme Court refused to hear our case. 

After Mallory's flight from New York in 1979, we went to the 
local city. State, and Federal authorities. 

We now raise these questions to this committee: Why did John 
Santucci, the Queens County district attorney, take tapes of testi- 
mony concerning irregularities in the custody trial for 10 hours 
from myself, my wife, my mother-in-law, my youngest son, and my 
grandson Brian, and do nothing about apprehending the children's 
father? Why would he not indict Mallory for perjury for lying to 
the judge and saying he was coming back? Why did Ed Koch, the 
mayor of New York, say he was going to investigate this case and 
check with the New York City Department of Investigation which, 
again, took written testimony from me, my wife, my mother-in-law, 
and my youngest son and did nothing? 

Why did the special prosecutor of the State of New York investi- 
gate this case and do nothing? 

Why did the Federal Bureau of Investigation in 1979 send agents 
to our house, take statements and documents, interview our attor- 
ney — tell us the U.S. Attorney General was sending a representa- 
tive to our house, and then nothing happened? 

Why did the judge in Denver ignore the fact that my wife and I 
have lived a life built around home, school, community, and syna- 
gogue, and take the word of a convicted felon, a man who is 
wanted now in New York State for arrest, and strip us of our New 



35 

York visitation rights under a loophole he found in the Colorado 
Grandparents Visitation Act? 

We cannot answer these questions, but we hope you will try to. 
Every grandparents' visitation rights case is different. But there is 
a common denominator running through many of them. Our 
daughter Judy's social security benefits of more than $600 a month 
are being paid to the children's father. He lives with them — his 
new wife and their two children — in a trailer camp. We have re- 
ceived letters from other grandparents who say this is a common 
situation today. 

The benefits grandchildren now receive from social security for a 
deceased parent makes these children very valuable to natural par- 
ents, who may then refuse to allow these children to visit their 
grandparents. 

Nor does the Social Security Administration bother to check and 
see if the benefits are actually being spent on the children. You 
can multiply this case by tens of thousands. 

For example, while the children's father was in hiding, he did 
not collect their social security benefits for more than a year. After 
the trial, he received $4,000 to $6,000 in one lump sum from the 
Social Security Administration. We believe this money was used to 
pay an attorney in Denver who argued in the court there that we 
be denied our New York visitation rights. We ask the committee to 
investigate this alleged misuse of social security benefits in our 
case and others. 

In our written testimony to this committee we have asked that a 
Federal family ombudsman and a law guardians' panel be set up in 
every State. 

No machinery now exists to help grandparents after a parent 
kidnaps a grandchild across a State line. 

As Americans, my wife and I think of the impact that the trage- 
dy of young Anne Frank has made upon the world. 

We ask the committee: Can America now afford to raise an 
entire generation of Anne Franks — forgotten grandchildren — held 
as hostages — denied visitation by the grandparents who love them? 

We call on the Congress, on Mrs. Nancy Reagan and her foster 
grandparents plan, and on Attorney General William French 
Smith to help grandparents and grandchildren to see each other. 

This is what the Congress intended when, on December 28, 1980, 
it passed Public Law 96-611. 

My wife, Marcia, would now like to say a few words to the com- 
mittee. 

Mrs. KuDLER. Ladies and gentlemen, how can my husband and I 
tell you in 15 minutes what we and our family have suffered these 
past 5 years? I am here today not only for my husband, Harvey, 
but for my 82-year-old mother, my three sons, my two youngest 
grandchildren, my dear dead daughter, Judy, and for her children, 
our grandchildren, Brian and Vanessa. We are not lawyers. We do 
not know a great deal about the law, but we do know that we and 
our grandchildren have the right to see and communicate with 
each other. 

We love Brian and Vanessa very much. We brought them up for 
almost 5 years. They lived with us. We had full legal custody by 



36 

agreement with both parents. Why should procedures have to 
stand in our way? Under the law don't we have this right? 

We think it was the aim and the spirit of the Congress that 
grandparents and grandchildren should have interstate visitation 
and communication. Are not New York and Colorado part of the 
United States of America? Why should the haven State of Colorado 
be allowed to destroy visitation rights granted to us by our home 
State of New York? Why shouldn't our warrant from a New York 
State Supreme Court judge issued in 1979, be honored or at least 
recognized in 1980 by a Colorado court judge? 

We think the U.S. Court of Appeals Fifth Circuit ruling of 1980 
and 1981 in the case of Johns v. the U.S. Department of Justice in- 
dicates that a 5-year-old girl was entitled to due process, her civil 
rights and counsel under the U.S. Constitution. Doesn't mean that 
Brian and Vanessa are entitled to their rights, too? We have been 
blocked by procedures and technicalities for more than 3 years, but 
we stand here today in Washington before this congressional hear- 
ing because we believe that right must prevail. We have not been 
allowed to see our grandchildren in more than 3 years. 

Why can't the facts be heard, at long last, by elected representa- 
tives of the people? In the name of justice, please listen to the 
facts. Are these children American citizens entitled to civil rights, 
or are they just things? Who speaks for Brian and Vanessa? Who 
speaks for other grandparents and grandchildren? God knows we 
have tried to get justice in this case. All we ask is that the children 
be allowed to visit us in our home in New York. We may not know 
the law, but we do know what is right. We beg you, please help our 
family and other families. Let your sense of justice guide you. 

[The prepared statement of Harvey and Marcia Kudler follows:] 

Prepared Statement of Harvey and Marcia Kudler, Flushing, N.Y. 
"Grandparents Rights to Visitation" 

(A SOLUTION TO AMERICA'S MOST-IGNORED PROBLEM) 

A solution to America's most-ignored problem 

James Fenimore Cooper, in one of his novels, describes how a group of pioneers 
copes with an engulfing prairie fire. Cooper's hero, a plainsman, uses a trick he 
learned from his Indian friends. He starts a second fire which burns out a strip 
where the pioneer band can stand in safety. 

We feel that now tens of thousands of America's grandparents and grandchildren 
are being engulfed in a similar fire of cruelty and legal indifference. We hope that 
the Human Services Subcommittee of the Select Committee on Aging will start a 
backfire that will ignite the Congress to take action. 

The United States Supreme Court has indicated in several recent cases, notably 
Moore vs. the City of East Cleveland, that grandparents have constitutional rights to 
a relationship with their grandchildren. In Smith vs. Organization of Foster Fami- 
lies, the U.S. Supreme Court recognized the fact that children can be raised by "psy- 
chological parents" who are not the children's natural parents. In this case, the dis- 
trict court appointed law guardians for the foster children. 

In 1980 and 1981, the United States Fifth Circuit Court of Appeals, in Johns vs. 
Department of Justice, ruled that an American child has a constitutional right to 
counsel ; before it can be deprived of its family. And, most importantly, on December 
28, 1980, the Congress enacted a bill which states that no one, in America, can de- 
prive a parent or grandparent of his custody or visitation rights by fleeing across 
state lines. (Public Law 96-611: Section 1738A U.S. Code 28) And that last law, our 
greatest bulwark against the erosion of the American family — through parental kid- 
naping — is deliberately not being enforced by the United States Department of Jus- 
tice. 



37 

Something must be done; and done immediately. 

Speaking for other American grandparents, we ask the Committee to look at the 
facts. Firstly, there is a New York State law, Domestic Relations Law; Section 72, 
which states that the parents of a dead parent have special rights to see their 
grandchildren. The reasoning behind this is self-evident. When a parent dies, the 
only direct contact that a child has with his or her roots are his grandparents. The 
Bible understood this simple but basic connection and many cultures in the world 
today stress the importance of family continuity. 

It was no coincidence that, in 1980, when Colorado passed its own Grandparents' 
Visitation Act, that great state, like New York, wrote an almost identical visitation 
clause, granting grandparents special visitation rights. 

Yet a terrible thing happened to my wife and to me, on Black Friday, June 13, 
1980, in a Colorado state court. First, the judge refused to honor our visitation 
rights; granted in 1978 by a New York State Supreme Court judge. Secondly, he ig- 
nored the fact that the father of my grandchildren has a bench warrant for his 
arrest, outstanding in New York. 

(Throughout the proceedings in New York, the father hid his plans to flee the 
court's jurisdiction, knowing that we had no legal remedy. Colorado ignored the 
New York court order and extinguished our relationship with Brian and Vanessa. 
Bear in mind that we had cared for them, in our home, for an uninterrupted period 
of five years. During this time, we had legal custody of the children; with consent of 
both parents. During this period, our daughter, Judith Bess, the children's mother, 
passed away.) 

My wife, Marcia, and I have raised our four children in our community. We have 
lived in the same home for thirty-two years. I have been a teacher in the New York 
City school system for twenty-one years. I have a Ph. D., in English, from Saint 
John's University. I was a Cubmaster and Scout leader, for twelve years, taking my 
sons and my grandson, Brian, into Scouting. 

My wife was president of the Parent-Teacher Association in our public school. She 
was a Girl Scout leader and led our late daughter, Judith, and our granddaughter, 
Vanessa, into Girl Scouting. 

We are life members of the Hillcrest Jewish Center and are leaders in synagogue 
activities. Our three sons earned college degrees and they hold responsible jobs. 

Our oldest son, Harold, 29, is completing a residency, in Psychiatry, at the Yale 
Medical Center. He is married and lives in Connecticut, with his wife and two chil- 
dren. Our second son, Howard, 28, has a Master's Degree from Saint John's Univer- 
sity and works for a Wall Street firm. Our youngest son, Harley, 26, works for the 
New York Telephone Company. He is doing graduate work, at night, in Special Edu- 
cation, at Saint John's University. 

When the attorney we hired, in Denver, told the local judge that my wife and I 
also had visitation rights under Colorado's own Grandparents' Visitation Act, the 
judge used a loophole to strip us of our visitation rights. This was done, ignoring the 
father's criminal record. (He served four-and-a-half year's probation, in New York, 
on a felony charge of selling drugs.) 

We appealed that decision through the courts of Colorado up to the United States 
Supreme Court. In October, 1982, the highest court in the land refused to hear the 
case. 

For the last two years, since the Congress passed the Federal Parental Kidnaping 
Prevention Act of 1980, we have been looking to the United States Justice Depart- 
ment for help. But the Justice Department is, in effect, overriding the will of the 
American people by practicing "selective enforcement" of Section 1738 A of the U.S. 
Code. 28. 

How "selective" is this enforcement? In the two years since the law was passed 
and hailed by the New York Times, in an editorial (January 10, 1981: "The Feds 
Pursue the Child Snatchers,") we are aware of its being enforced only once. On Sep- 
tember 2, 1981, the Times reported that Bruce Wettman, a Family Court judge in 
Houston, Texas, was the first judge in America to honor the new Federal parental 
kidnaping law. Judge Wettman honored the custody claim of a father from New 
York who had invoked the new Federal law. 

Only one case reported enforced; even though the New York Times wrote, in 1981, 
that more than 100,000 children a year (2,000 a week) are being kidnapped in Amer- 
ica; by vengeful parents. Grandchildren are being deprived of basic family rights. 

When my wife and I appeared recently in the office of the United States Attor- 
ney-General, in the Eastern District of New York, we were told that the Justice De- 
partment, in Washington, does not want to "open the floodgates." 

We say to this Committee, "Open the floodgates!" 



38 

Because behind those floodgates, are tens of thousands of American grandparents 
who are trying to re-establish contact with their own grandchildren — the very 
future of America! 

This is as important to the Aging as their economic rights so often protected by 
this Committee. There can be no golden years without the glow of grandchildren. 
We grandparents have been left with the ashes of our memories. 

Our First Lady, Mrs. Nancy Reagan, has called for the establishment of a Foster 
Grandparent Program. 

We heartily endorse this proposal and urge Mrs. Reagan to continue to use her 
influence to try and help the grandparents of this country. 

The decisional incompetency, capriciousness and indifference of the courts and 
the Justice Department, are forcibly keeping grandchildren from their grandpar- 
ents. 

Here is what we propose: We ask the Congress to appoint a Federal Family Om- 
budsman in every state of the Union. If a grandparent feels that he or she has been 
wrongly denied or deprived of his or her legal rights to see a grandchild, then that 
grandparent could go to the Federal Family Ombudsman. The Ombudsman would 
be able to enforce Section 1738A of U.S. Code:28, the three recent Federal court 
cased I have cited and any other appropriate new legislation passed by the 97th 
Congress. By this process, the children of America would be protected. 

The Federal Family Ombudsman should also be assisted by a special Law Guard- 
ians' Panel, to be established by law. This panel — in each state — will be made up of 
trained people who know and work with children. These experts will be people who 
know what truly serves a child's best interests. Such a panel would include; physi- 
cians, social workers, teachers, lawyers, clergymen, grandparents, nurses and psy- 
chiatrists. 

Complaining grandparents would present all the facts in the case directly to the 
Ombudsman who would refer the case to the Law Guardian's Panel. The panel 
would investigate and then discuss each case on its merits. Then the Law Guard- 
ians' Panel would make a recommendation to the Family Ombudsman. The Federal 
Family Ombudsman would then decide; based on the findings of the panel, what the 
grandparents and childrens' civil and legal rights should be. 

These problems cross state lines and only Federal intervention now can rational- 
ize the legal rights of grandparents and children. A Federal Family Ombudsman 
and Federal Law Guardians' Panel, in every state, would guarantee that the forgot- 
ten generation of children who are now being dragged across the state borders of 
this country will be protected— under Federal Law— as the 96th Congress intended 
they should be, when it passed Public Law 96-611. 

This will protect future grandparents from the trauma and heartache we have 
suffered. No longer will one state be able to ignore the visitation and custody rights 
of grandparents. Future grandparents will not be denied "The Full Faith and Credit 
of the United States Constitution" as we were. 

Given the harsh ruling by the United States Supreme Court, in our case, on 
grandparents' inter-state visitation rights; it is interesting to note the humanitarian 
rulings by this same court in Kent v. U.S. and in re Gault where juveniles were 
charged with crimes. The highest court has ruled that a youngster accused of the 
smallest juvenile crime is entitled to counsel. But as yet, any child who, as one at- 
torney put it, has his whole life-to-be endangered, in a custody case, is not granted 
counsel by state court judges. 

For example, when my wife and I offered to pay for counsel, on the record, in 
Queens Supreme Court, for my grandchildren — these children were denied counsel. 
They stood, as some psychologists have said, unprotected against the state's will. 
And, we think, their civil rights were violated. 

This country has got to gets its priorities in order. Our children and grandchil- 
drend are our most priceless heritage. Their futures are too precious to be put in 
the hands of state court judges who do not know enough about family life to realize 
they are destroying children's futures. We have seen a judge, in Colorado, sentence 
hand-cuffed criminals, even as he then passed judgement — without help of outside 
agencies — on the lives of two innocent children. In short, both grandparents and 
grandchildren are having their civil rights, constitutional rights, religious rights 
and the right to be free of kidnapping all violated; while the U.S. Department of 
Justice; charged by law with protecting these rights, sits idly by, or worse, places 
roadblocks of delay in the paths of grandparents seeking have their legal rights en- 
forced. 

We ask the Committee on Aging to "Open the floodgates." Behind those gates 
stand America's older and wiser people, begging for help. 



39 

My wife, Marcia, and I are working with our local Holocaust Memorial Commit- 
tee in the temple in which we are life members. As American Jews, we saw what 
happended to millions of our brethren — men, women and children, when Western 
Civilization, in World War II, turned its back on Anne Frank and her friends. 

Must similar horrors be perpetrated on American children by massive bureaucrat- 
ic indifference to the rights and future of a generation of forgotten children — torn 
by cowardly and vengeful people from the arms of their grandparents who love 
them? 

We do not believe that the American people or their elected representatives will 
allow this to continue. 

We have already heard too many horror stories about American children who 
have lost a mother or a father and whose re-married parents collect hundreds of 
dollars a month in Social Security benefits that should be spent for the children. 

These children are then passed from new spouse to new spouse and the benefits 
continue to pour out of the coffers of the Social Security Department — making these 
children very valuable hostages; while the Social Security Department does not 
check to see if this money is truly being spent, as Congress meant it to be, for the 
children's best interests and not for the benefit of their latest guardian. 

Many grandparents are being denied access to their grandchildren lest they sound 
the alarm that a fraud is being perpetrated on the tax-payers who give their money 
to the Social Security Department, as we do; while that Department does not bother 
checking to see whether the children's benefits are being spent properly. 

Again, we hope the Committee investigates this national problem thoroughly. 

Charles Dickens, who himself spent time in a debtor's prison, with his father; and 
who was forced, as a child, to slave in a blacking factory, left a picture of horrors 
done to children that has made the names of Oliver Twist, Tiny Tim and Fagin im- 
mortal. 

We say that the horrors being done to American children, in this, the Computer 
Age, far surpass anything even Dickens could imagine. The Computer Age, far sur- 
pass anything even Dickens could imagine. The recent award- winning film "Kramer 
vs. Kramer" raised the consciousness of America as to the shock of a custody battle 
and its terrible effect on parents and children. The producers were careful to give 
the film a relatively "happy ending," lest the audience flee the theater in droves. 

In today's world of Reality, there are no happy endings for either grandparents or 
grandchildren who are caught up by judicial ignorance, indifference or favoritism. 

In March 1982, my wife and I made oral argument, along these lines, to a panel of 
three Federal judges in the Second Circuit Court of Appeals, in New York. One of 
these judges was a woman; a district court judge. She literally wept as my wife 
made her oral argument. The two men on the panel were obviously deeply moved 
and the chief judge said the court "was touched." But that high panel did nothing; 
despite the patent violation of my grandchildren's civil rights and our civil rights. 

We call the current state of affairs in which grandparents are denied access to 
their grandchildren— while the Federal government watches with massive indiffer- 
ence — "America's Most Ignored Problem." 

In Asian and African cultures, the Family comes first. Wisdom and Love, personi- 
fied by grandparents, are respected and revered. 

Has this country sunk so low, do we so worship Money, Oil and Munitions that we 
put them ahead of our future generation of children? Are Americans now so con- 
cerned with themselves alone that they are willing to turn their backs on a whole 
generation of forgotten, exploited, rootless and suffering children? 

Will we stand idly and helplessly by while grandchild and grandparent are kept 
separated by bureaucratic red tape and official indifference at every level of state 
and Federal government? 

We look to this Committee on Aging and to its Subcommittee on Human Services 
to continue to investigate the horrors we have experienced first hand and which 
mgmy others are living across the length and breadth of this great land. 

We also look to Mrs. Nancy Reagan and her humanitarian interest in grandpar- 
ents and grandchildren. We hope that the free press of this country will investigate 
all the ramifications of this, America's most ignored problem, bar none, and that, 
for once, the interests of voiceless children will be heard and listened to first ... in 
America, instead of last. 

Mr. BiAGGi. Ms. Ferraro? 

Ms. Ferraro. When I made an opening statement I read from a 
letter received by my office from Mr. and Mrs. Engel. As I was 
going out to cast my first vote of this morning, a woman stopped 



40 

me on the way and identified herself as Mrs. Engel and indicated 
she was here to hear what was going on during the course of the 
hearings. I ask unanimous consent that she be permitted to address 
the committee to share with us a little bit of her experience. 
Mr. BiAGGi. Without objection. 

STxiTEMENT OF MRS. HENRY ENGEL 

Mrs. Engel. Thank you very much. 

It has been 4 years since we have seen our two grandchildren. 
We have tried persistently. Our daughter also Judy by coincidence, 
is not a suicide victim as was the Kudlers' daughter, but destroyed 
by her marriage. She is a runaway mother because she was afraid 
of abusing the children and herself and ran away to give her hus- 
band an opportunity to find a more supportive nurturing parent as 
a mother. We entreated the custodial parent, the father, to have 
some communication with the children. 

After his remarriage, the relationship, which had been cordial 
and warm and supportive, came to an abrupt halt. We found there 
was vicious propaganda expressed against us and lies we heard ex- 
pressed in court when we went to court. The judge in our case was 
a woman, herself a grandmother, and on the basis of the testimony 
by a psychologist whom the father had called in after he did not 
like the findings of the court-appointed psychologist — he examined 
the children for 10 minutes, one child for 10 minutes — and then 
stipulated on the stand at $100 an hour, and he must have spent 
about 10 hours there, that the child was fragile as a result of 
having gone through the traumas of a runaway mother and having 
been left and abandoned. Any visitation rights granted to us would 
increase the hostility of the custodial parent to such an extent that 
the child's mental health would be threatened. 

We had only arrived at the decision to go to court after months 
of entreaty, letters. We finally persuaded our ex-son-in-law when 
we found where he was — he had been gone 9 months — to meet with 
us at a neutral place on Long Island. They are now back from 
Mexico where they were for 6 years. He said at that time, "I will 
not countenance negotiations to see your grandchildren. It is my 
decision. I do not care if the children hate me, I do not care if they 
suffer for it, there is to be no relationship and no contact hereaf- 
ter." 

Prior to that, in the hope that there would be some opportunity 
to do something for the grandchildren other than just being a 
grandmother, I took a course on learning problems because the 
older of the two children is dyslexic. As a result of taking that 
course, and of trying to learn something to help this child I became 
involved in producing a book that has come out on the subject. The 
book is a big success. My attempt to help the child is not. We have 
seen the children once, since 1977, for about 3 seconds as they were 
waiting to be called into the judge's chambers. I could not bear to 
look at them in the sense that I did not know whether I would ever 
see them again. The child, the older of the two children with whom 
I had had a special relationship because I used to send letters to 
Mexico — she was an artist, and I sent things for her to use in this 



41 

special skill— she was sneaking looks at us, very surreptitiously, 
afraid of her father. 

The decision went against us. The judge ruled that it would be 
dangerous to the children, particularly to the older of the two with 
whom this relationship had been established, but she said that ap- 
plied only at the present time. Since that decision we have written 
to the father, who is now on Long Island, asking that he cease his 
opposition to us. We are the only grandparents in this area. The 
stepmother has parents, grandparents in Mexico. His father is in 
North Carolina. It was maintained that because we could not have 
contact with the children for 5 years we had not established a 
meaningful relationship. The father of our ex-son-in-law main- 
tained in a letter that the new grandparents are supportive and 
loving and have wonderful contact with the children. But they are 
in Mexico. We are within an hour of them now. 

We are searching desperately for a means to go back to make 
our point known. We decided to go into legal action when I came 
upon the book "Grandparents, the Vital Connection, Grandchil- 
dren." In the course of this book there are drawings made by 
grandchildren in connection with their relationships with their 
grandparents. The decision to go into court was based upon a draw- 
ing by a child who had been cut off from her grandparents and the 
family of her mother, as ours have been. The child drew an empty 
outline of a back. 

We determined we would not let these children think we have 
abandoned them. We have love, but the hostility of the custodial 
parent has prevented us from letting them know it— we have writ- 
ten to him since and asked for notes about the children, how they 
are doing, pictures. We have no knowledge what is going on with 
them at all. He has not answered anything. I feel the only recourse 
we have for the children's sake, because the children are the most 
important parts of our society, they are our future and the family 
is important as a whole structure, is this Federal legislation where 
the grandparents have the right inherent to them in the relation- 
ships of birth and roots. 

Ms. Ferraro. Thank you very much. 

Mr. BiAGGi. Clearly you have established an emotional back- 
ground and factual background for furtherance of our concern in 
this issue. I know you represent an infinitesimal part of the entire 
picture. To say it is outrageous is I think a moderate expression. It 
can be infuriating, frustrating, all of the negatives one might apply 
to a situation, certainly inconsistent with America's philosophy of 
concern for human rights. 

As you were testifying, I could not help but reflect on the effect 
of such a denial if Mrs. Biaggi and myself were denied visitation. I 
know you have experienced it. It is like dying a little, and you are 
right. Being a grandparent gives you an opportunity to, well, 
maybe compensate for what you did not do for your own children 
in time and effort. The expression was said, when a child is born, a 
grandparent is born, and there is no such thing as an ex-grandpar- 
ent. You are dealing with deep, emotional, loving feelings, and to 
deny a child the benefit and advantage of a stable relationship 
with a grandparent is to deny a child a very important element in 
that child's growth. 



42 

I guess I could talk ad infinitum in connection with this, but the 
issue is plain. The facts speak for themselves. The grief that you 
have been subjected to, frankly, is of such a magnitude it defies de- 
scription. How you bear up under it is beyond me, without becom- 
ing psychotic. It is testimony to your own strength and commit- 
ment. It is the commitment to know one day that you will see them 
again. I think we are coming to that day, and this is another step 
forward. 

The fact that we have some 42 States with laws — I know some- 
times they are not always properly applied, and there are some in- 
justices and there are some aberrations, but we do have some 42 
States that have recognized the problem, and to me that is quite 
encouraging. Now it is up to us in the Congress to talk about uni- 
formity so there will not be loopholes and there will not be a sem- 
blance of statutes that are faulty in their provisions. And enforce- 
ment is critical. Every level of government has a responsibility to 
enforce the law and not to be selectively engaged in this type of 
practice. And to deny one person, one grandparent his or her right, 
that is sufficient justification for proceeding. That to me is prob- 
ably more important, enforcing the law that applies to that area is 
more important than even some of the minor crimes that are being 
prosecuted every day, because in the ultimate, most of those crimi- 
nals are permitted to walk in the street even without serving a day 
in jail an)rway. 

Here we have law-abiding, loving parents who are being denied a 
birthright, a birthright, and you have children who are being 
denied a birthright. It is a human right. Someone said child abuse. 
Yes, that is a form of abuse. We will look into that, too. But it is 
certainly a fundamental human right that should be made availa- 
ble to every person, not only in this country but in the world. But 
let us deal with our Nation first. 

Let me first acknowledge that Mr. Petri was here as a Member 
of Congress and had to leave. 

You stated something about the Justice Department, Mr. Kudler, 
refusing to prosecute. Would you elaborate on that a little bit? 

Mr. Kudler. Yes, sir. What I tell you may not make much sense. 
I have gone over it, over it, and over it, with the Justice Depart- 
ment people in New York and Washington. They assure me that 
what I am telling you is the truth. Through the offices of Senator 
D'Amato in New York we had an appointment with a young man 
named Lawrence Zweifach in the intake division, the criminal de- 
partment. Eastern District of New York in Brooklyn. He read a 67- 
page chronology that we submitted and then he reported to Wash- 
ington. 

And at the interview, Mr. Biaggi, he said, "Were you aware that 
the Justice Department was in effect practicing selective enforce- 
ment?" He took out a manual, the kind we used to see in the 
Army, and it had the U.S. Seal on the cover. He opened it to some 
blue pages and these were house rules of the Department. He said 
the Justice Department sometimes decided when to come into a 
case like this and when not to. He used the words "green light" 
and "red light." He did not explain to us what the rules were. He 
said he would have to go to his superiors in Washington. 



43 

And we went to our rabbi, who explained what was going on, and 
the rabbi said, "Find out who gives the green Ught and who gives 
the red Ught." 

We got a phone call and a letter from Mr. Zweifach, and he said 
the counsel in the criminal division here, headed by a Mr. Law- 
rence Lippi, had decided based on house rules, Mr.- Zweifach said, 
they were keeping "the floodgates closed." Marcia and I and all the 
people at the table are behind the floodgates. They did not want to 
open the floodgates. The ruling is as of last week, and we have an 
appointment with these gentlemen tomorrow. What they said was 
that if you know where your ex-son-in-law is, we cannot help you. 
It is a catch-22 situation. But if you do not know where he is, we 
can ask the FBI to find them. We know that President Reagan 
signed the National Parental Locator Act recently, which they will 
not enforce for 2 years because it is too expensive, and who cares 
about children's votes, anyway? Children do not vote. 

Mr. BiAGGi. Grandparents do. 

Mr. KuDLER. Yes, sir. And they said to us, Mr. Chairman, they 
said to us that we will be happy to come into this case if you will 
go to your State prosecutor or your local district attorney and get a 
felony indictment against your ex-son-in-law. Then we will bring 
the machinery of the FBI into effect. And then when we went back 
to the State people, who have turned a cold ear to our pleas for all 
these years, they said "No, go down to the Justice Department and 
tell them to enforce the law." We are caught between the two, nei- 
ther of which want to help us or anybody at this table. 

Mr. BiAGGi. We will pursue this, Mr. Kudler. I will assign Dr. 
Statuto to accompany you tomorrow when you visit. 

Mr. Kudler. We are grateful for that, because two people alone 
are helpless against a Federal bureaucracy. 

Mr. BiAGGi. Dr. Carol Maria Statuto just joined our committee 
and comes as a Congressional Science Fellow sponsored by the 
American Association for the Advancement of Science and the So- 
ciety for Research in Child Development. 

Dr. Statuto received her doctorate in early childhood education 
and psychology from Columbia University, where she has also 
served as a faculty member. She established a program in child ad- 
vocacy in 1977 at Marymount Manhattan College in New York, the 
first of its kind in the country. Dr. Statuto received post-doctoral 
training in child development and social policy from the Bush pro- 
gram at the University of Michigan. We welcome her to the com- 
mittee. 

I want each and every one of you to know that every point that 
you made today will be followed assiduously and relentlessly. 

Mr. Shumway. 

Mr. Shumway. Thank you, Mr. Chairman. I see the bells have 
rung again. We will soon have to recess once again. I apologize for 
that. The testimony here this morning has been very touching, and 
I am sure each of us who have heard it have been affected by it. 

In my own case, I am the father of six children, and only newly a 
grandfather. Our first grandchild was just born last September. As 
each of you testified about how dear those grandchildren are to 
you, it is easy to personalize one's own situation. I could very much 



44 

empathize with your feelings knowing how I feel about my grandfa- 
ther. 

I am a former lawyer and participated in several custody cases in 
California. I am familiar with how emotional those cases can be 
and how difficult those rights are to determine. Each of you in tes- 
timony seem to make reference to what has happened to you in 
court and how certain judges have reacted to your pleas. In some 
cases the judges have abused discretion, and in other cases they 
have adopted views sympathetic with yours. 

The concern that I have as a Member of Congress in considering 
this in a national light is how we can structure a body of law, as- 
suming we have the right under the Constitution to do so, that 
would apply to each of the varied situations that you have illustrat- 
ed here this morning. Obviously there have to be feelings that have 
to be accounted for and emotions on all sides that have to be taken 
into consideration. Yet, when we put something into statute we try 
to invoke a sort of mechanical kind of situation that would perhaps 
overrule some of the abuses of discretion you have been confronted 
with in your court exposures. 

My question is how to develop a law that would apply to this im- 
portant area that would be mechanical enough to address your 
needs but yet human enough to allow some of these important fac- 
tors to be taken into consideration. It is a difficult mix to come up 
with, but we are saddled with that responsibility because we have 
to have it down in black and white. It has to be codified, and the 
needs that you have referred to here this morning need to be ad- 
dressed. It is something that is very difficult, and I just want you to 
know that that is a task that we face that is not a very easy task to 
resolve. Certainly if you have in your experience and within your 
organizations and your communications, if you have the key to re- 
solving it, we would be happy to hear further from you. 

A second general area that I had concern with is if we are indeed 
going to recognize grandparents' rights and the custody, when do 
those rights take effect, and how should they be put into effect? 
Would any of you expect that when a divorce occurs and a custody 
dispute is handled by the court that the grandparents at that point 
enter in as parties to the legal proceedings and that their rights be 
determined then? Or would there be some kind of a subsequent 
proceeding that would be triggered by incapacity of parents, and if 
so, what would trigger that? Those are questions that I think need 
to be resolved. I guess as we go on with the hearing we can come 
up with answers, but if any of you have solutions, I would be happy 
to hear from you. 

Mr. BiAGGi. Thank you, Mr. Shumway. You raise problems that 
are very significant. Those are problems that we will have to wres- 
tle with in the crafting of legislation. The suggestion of whether or 
not a grandparent should be sitting in at the dissolution of a mar- 
riage is very commendable, but interestingly enough, there is one 
State that permits that. Very interesting. 

Mr. Chasens. I have a suggestion. I think the bloodline ought to 
take priority. It is your body heir. These people have money set 
aside. We have. We are fortunate, and if we look at it like chicken 
soup, you think about it, it is healthy for you and will do you good, 
but if you are thinking about it will help, it will help. Our mental 



45 

attitude has to change. Ninety-nine percent of the people say we 
are right, but where do we go? 

Mr. BiAGGi. You are moving. You are progressing. I am optimis- 
tic. I think it is a right that should not be denied. 

We will have to cut you short because we have bells, and I know 
Ms. Ferraro wants to comment. 

Ms. Ferraro. Mr. Chairman, I ask that you have the panel 
remain until we come back from the vote, because I do have ques- 
tions for the panel. 

[Recess.] 

Mr. BiAGGi. The hearing is called to order. 

Ms. Ferraro. 

Ms. Ferraro. Thank you, Mr. Chairman. 

After listening to the panel, I cannot get over the frustration 
that you people must feel, especially those people who have actual- 
ly lost their children to death. I as a mother can think of absolute- 
ly nothing worse than losing a child, except if it is compounded by 
losing the child's children after that, and you have literally lost 
those as well. 

Mr. Kudler, I wanted to talk to you a little bit about what oc- 
curred in Queens County. Before I ran for Congress, I was a super- 
vising trial attorney at the district's attorney's office in Queens and 
worked for John Santucci and practiced before Judge Kunzeman. 
You indicated that you were in his office for 10 hours. What 
bureau were you dealing with there? 

Mr. Kudler. Mrs. Ferraro, before I speak, I may say something 
that may sound intemperate. It is very hard for me to discuss this, 
and I do want to answer your question. I would like to swear that 
everything I am going to tell you is the absolute truth. 

Ms. Ferraro. I have no doubt about that. 

Mr. Kudler. I worked personally with Mr. Santucci's first assist- 
ant, Mr. Joseph Fisch. The 10 hours were logged. He asked me to 
bring Brian to him and he taped him. Then he introduced us to a 
gentleman who never said anything, Mr. Fisch called him Mr. 
Berg, and said he was their special investigator. Mr. Berg sat si- 
lently and I believe the day that my mother-in-law, my wife, and 
my son Harley were there, Mr. Berg was there also. 

Ms. Ferraro. When you finished your testimony, was there an 
attorney assigned to the case besides Joe Fisch? 

Mr. Kudler. No, ma'am. Joe Fisch told us as he was taking the 
testimony that it might not help us. But the information we were 
giving, he said, was very important to the district attorney's office. 
I told the Justice Department in Brooklyn what it was, and they 
wrote it down. I believe they forwarded it to Washington. I do not 
know if you want to hear me say these things, because we do not 
want to color what you are hearing with the political climate of 
Queens County. 

Ms. Ferraro. The arrest warrant outstanding, was that issued by 
Judge Kunzeman? 

Mr. Kudler. Yes. 

Ms. Ferraro. Thai was issued prior to your going to the DA's 
office? 

Mr. Kudler. No, ma'am. 

Ms. Ferraro. It was issued after? 



46 

Mr. KuDLER. Yes, ma'am. I believe as a result of our having gone 
to the district attorney. 

Ms. Ferraro. You went to the special prosecutor? 

Mr. KuDLER. Mr. Lankier, I believe after Mr. Nadjari left office, 

Ms. Ferraro. Mr. Duffy is 

Mr. KuDLER. Yes. We are interested in any help you can give us. 

Ms. Ferraro. Has his office done an investigation in this matter? 

Mr. KuDLER. No, the special prosecutor would not touch the case 
with a 10-foot pole. 

Ms. Ferraro. Because he feels with law enforcement officials 
and members of the judiciary who have gone outside the scope of 
their authority— he probably felt it was outside his jurisdiction. 

Mr. KuDLER. I do not know. I would like very much for him to 
talk to us. This is several years later, and we believe there have 
been complications that changed the situation. 

Ms. Ferraro. When you saw your grandchildren for the 4 hours 
that you were there that last time, what was the reaction of the 
children? 

Mr. KuDLER. I will tell you my reaction, and I would like my wife 
to tell you hers because we do not always see things the same way. 
When we picked them up at the school, we had a warrant, and this 
is the truth, we had not seen this girl in 6 months and she was 6 
years old. She did not know we were coming. She ran to us and 
after she said hello, the first thing this 6-year-old child asked us is, 
"Where is Mrs. Corrado?" And Mrs. Corrado was her attorney in 
Queens County. We think she wanted to go home with us. 

Ms. Ferraro. Is that Pearl Corrado? 

Mr. KuDLER. Yes, ma'am, that is Pearl Corrado. 

Mrs. KuDLER. The children were shocked and Vanessa said, 
"Where is Mrs. Corrado," because she felt Mrs. Corrado was her 
savior. We had another attorney with us because Mrs. Corrado was 
by then a judge. 

We said, "She is not here." 

She said, "Are we going home now? Should I get my coat or will 
you take me like this?" We did not know what to say. 

Brian came down the hall. I did not know him. He had lost a tre- 
mendous amount of weight. He did not look like Brian, but he was 
stunned and I really did not know who he was. He got close and 
said, "Mammy"— that is what they call me. I said, "Brian, I did not 
know it was you. Of course he hugged me, and he said, "I cannot 
believe it. I was just talking to my teacher about you this morn- 
ing." He was so flabbergasted. Of course it was a shocking experi- 
ence, but those children wanted to come to what they call home 
and visit with us and be with us and our family, and it was quite a 
time. 

Ms. Ferraro. I guess the question I would ask of all of you is one 
that I guess is — it is hard for a parent, and I could imagine it is 
equally as hard for a grandparent— if the courts found fairly, and 
obviously from the testimony we have had today, many of you do 
not feel you have been given a fair hearing either because the 
judge did not understand or because there was insufficient testimo- 
ny or in an instance where it was given and the child taken 
away — if the court found fairly that it was in the best interests of 



47 

the child not to have you visit, would you accept that? I am going 
to ask each one of you that. 

Mrs. KuDLER. Who would decide this? 

Ms. Ferraro. The court. 

Mrs. KuDLER. How many people on the court? 

Ms. Ferraro. If it were a fair hearing with a fair judge. 

Mrs. Kudler. No, not one man. He cannot play God. It says, "In 
God We Trust." We trust God. But in the courtroom its "who do 
you know?" We were passed around from judge to judge. Nobody 
wanted us. Nobody wanted the case. We were treated like dirt. 
Nobody really cared about the children or where they belonged. 
Judge Joan Durante — my grandson was walking down the steps of 
the courthouse and he said, "I want to go back." Mrs. Corrado said 
"Why?" "Because Judge Durante told me I should go to my father 
for three Sundays". And she gave him cookies, and he said, "I do 
not want to go, but she bribed me." That was the word he used. 
"He realized what had really happened, and every judge had said, 
"Do it for me, do it for me." They do not care what the child says. 
No one judge should decide this, no, ma'am. 

Mr. BiAGGi. Would the gentlelady yield? 

How about a mediation panel? 

Mrs. Kudler. Yes, made up of psychiatrists, social workers, and 
other child experts. The family court is the most decent. They have 
understanding. The Queens Supreme Court really is not interested 
and they do not want us. I can tell you case after case, friends of 
ours from our little area in Queens, one just yesterday had Judge 
Graci 

Mr. Kudler. Judge Bushman. 

Mrs. Kudler. She got Judge Bushman and she was hysterical 
last night when we called her. 

Mr. BiAGGL The Sumpters, you prefer a mediation panel? 

Mr. Sumpter. Yes, sir. 

Mr. BiAGGi. Mrs. Engel. 

Mrs. Engel. We agreed before during the trial that the best in- 
terests of the children came first, because that is the priority issue. 
When we found out that the best interests of the children were 
being threatened by the father but not by us — they might suffer a 
trauma of small proportions — mediation, yes, before the trauma, 
large or small. 

Mr. Biaggl Mrs. Chasens. 

Mrs. Chasens. When you talk about mediation, we went to trial, 
my husband told you. The judge spoke to my granddaughter in his 
private chambers. She loves us, she enjoys being with us, one thing 
after another, and after 2 days in the courtroom, this man gave us 
a 2-year contract, a judgment for 2 years. We can see her as often 
as we like, but that depends on the father. You know, she has no 
say in it. She will be 12 in May. But he came back and he told us 
all this. Then he gave us a visitation order, no less than four times 
in 6 months. 

Mr. Biaggl Mrs. Chasens, please just answer the question. 

Mrs. Chasens. There would have to be firmer law and mediation 
with the right kind of people. 

Mr. Biaggl We are talking about the preferred course to pursue. 



48 

Mr. KuDLER. Congressman, the judge who took away our grand- 
children in Denver was sentencing convicts in between talking to 
us. 

Mr. Chasens. I have two documents which I would like to 
submit. One is a court order from Judge Gruzio, who I said was 
family-oriented. This is back in 1976 

Mr. BiAGGi. Please do not tell me what he said. Submit it for the 
record. 

[Material retained in committee files.] 

Ms. Ferraro. Let me say that the reason I asked that question 
was just specifically to get to an avenue that can be taken so that 
we can see where we are going in order to resolve some of these 
problems, and obviously, Mr. Chairman, the jurisdiction resting 
solely in the courts is not satisfactory. There is no doubt in my 
mind that every individual here puts the welfare of their grand- 
children above their special needs, but by the same token even 
they feel they are not getting a fair shake in the courts. Perhaps 
the jurisdictional problem is something that we should look at as 
part of our handling of this matter. 

I just want to thank you all individually and you for coming 
down as well. I am delighted you were able to be here. I will follow 
up with some of our people in Queens who are known to me and 
see if we can help you out. 

I would like to mention the jurisdictional problems that occur be- 
tween States. New York State had an arrest warrant and Queens 
County has tens of thousands of arrest warrants outstanding. Their 
jurisdiction extends to the borders of the county, it does not go fur- 
ther. 

Mr. KuDLER. This one extends to the State of New York. 

Ms. Ferraro. It extends to the State of New York, but not to the 
State of Colorado. That is why the frustration is extremely acute, 
but whether on this type of thing, I used to be in charge of the spe- 
cial victims bureau handling the child abuse cases and elderly vic- 
tims and battered spouses. It did not extend beyond, and often we 
would have the arrest warrants and have to wait until they came 
back to our jurisdiction. We will follow up. I do not know what can 
be done in the county, but we will follow up. 

Mr. BiAGGi. Mr. Rinaldo. 

Mr. Rinaldo. Thank you very much, Mr. Chairman. I was just 
listening to some of the statements you made with great interest. 
What I want to do is first of all certainly congratulate you all for 
coming down here, and then I recognize that it has probably cost — 
many of you have been involved in court action — thousands and 
thousands of dollars. What I feel is important is, what advice do 
you have, and I would appreciate it if you could answer it briefly, 
for other grandparents who are interested in pursuing their rights? 
There are many cases. I am sure some of these people are probably 
reluctant to do so. In other cases perhaps they do not have the fi- 
nancial means to be able to take legal action. What would you sug- 
gest? 

Mr. Chasens. Personally, it is the temperament and the under- 
standing of the judge. We are victims of that. I have a statement 
which I read from Judge Grucio's order. Judge Francis, they were 



49 

very liberal. The young judges are trying to set a precedent or 
something, I do not know. This I will quote verbatim, 

After years of litigation, I think I have gone along with this enough. If you think I 
will not enforce my order, just stick around. You will see that I will enforce it, that 
I enforce all my orders. I will enforce Judge Francis' orders. I want to make it per- 
fectly clear. 

And that is it. 

Mr. RiNALDO. What advice would you give if you had to give — in 
a sentence or two 

Mr. Chasens. Do not go to court unless you have a sympathetic 
judge. That is what my article is about. After 8 years, we lost. I do 
not want to be the Don Quixote of the grandparents. After the arti- 
cle appeared in the paper, I had hundreds of calls and letters and 
people said, "What should I do?" Go to your attorney. If you have a 
sympathetic judge, fine; if not, you are wasting your money. 

There should be an agency set up. What is the necessity of going 
to court wasting their time, wasting our time. It is a human need. 
You restrict the speed limits to 50. As I said before, we have hopes 
and aspirations for our grandchildren. They are a part of our life. 
They will always be, whether the ex-husband remarries — there 
could be 10 or 12 grandparents, they are still our grandchildren. 
Heirs of body should have precedence and consideration. If one 
judge in his infinite wisdom gave you x amount of visitation, it is 
inhuman and cruel to deprive you of that. After 3y2 years Judge 
Grucio's decision was overruled by an inexperienced judge. To 
quote, "I needed a heart surgeon; I got a proctologist." 

Mrs. Chasens. Max is very emotional, more so than I, because I 
know we go back to the same thing all the time. This man is a 
father. He is not a grandparent. He has young children. As I think 
somebody said down there, "How can they dispense the love and 
the understanding? How do they know what it is to be a grandpar- 
ent and to want to have visitation rights?" I said that when I was 
too long on the comment, that the judge spoke to my granddaugh- 
ter and told us she wants to see us, then he gives us four visita- 
tions in 6 months. We got on the stand and with our lawyer said 
we agreed that we did not want structured visitation any more be- 
cause she is older and has different things that she has to do. I am 
trying to tell you, it has to be structured in some form. You just 
cannot say do whatever you want to do. Here we got an offering 
and we cannot see her at any special time or any lenjgth of time. 
That is the structured visitation. 

Mr. RiNALDO. Mr. Kudler. 

Mr. Kudler. What you are hearing is the results of years of 
hardship. It makes it hard to answer questions, but I will answer 
your question. I would suggest to somebody who was in our predic- 
ament, find the best custody lawyer you can find and afford, some- 
one knowledgeable about these cases who is prepared to fight for 
you and not just take your money and walk away. And then you 
better make damn sure that there is no political influence brought 
to bear on the court. 

Mr. RiNALDO. Thank you. 

Mrs. Kudler. I do not think that the age of the judge is a crite- 
rion, because it does not really matter. 

Mr. BiAGGL The gentleman s time has expired. 



50 

Thank you very much, ladies and gentlemen, for your contribu- 
tion today. As I said before, it is the basis for this committee 
moving forward. 

Mr. BiAGGi. The next panel is the panel of psychiatrist, Dr. 
Arthur Kornhaber of New York and Dr. Andre Derdeyne of Virgin- 
ia. 

I have been asked by unanimous consent to insert into the record 
a poem by Max Chasens concerning his grandaughter. Without ob- 
jection, so ordered. 

My Granddaughter 

She Doesn't have a Sister or a Brother 
And worse than that, lost her real loving Mother, 
Yet her eyes are burning eagerly with a deep desire 
To kindle that loving flame into a raging fire. 

She feels that she must act for two 

To ease the pain with a love so true. 

And when her small hands caress your face 

And pleading eyes say, "please let me try to take her place". 

With this great love we have for each other, 

"God bless dear old Gramps and my Mother's Mother. 

So please don't let me go astray on this or any other memorable day, 

I give to them for they are old and hungry for my love 

For we are often thinking of our loved one who is watching from above. 

PANEL 2— PSYCHIATRIC VIEWPOINT, CONSISTING OF DR. 
ARTHUR KORNHABER, MOUNT KISCO, N.Y., PSYCHIATRIST AND 
FOUNDER, FOUNDATION FOR GRANDPARENTS, COAUTHOR, 
"GRANDPARENTS-GRANDCHILDREN, THE VITAL CONNECTION;" 
AND DR. ANDRE DERDEYNE, PROFESSOR OF PSYCHIATRY, DI- 
RECTOR, DIVISION OF CHILD AND FAMILY PSYCHIATRY, UNI- 
VERSITY OF VIRGINIA SCHOOL OF MEDICINE, CHARLOTTES- 
VILLE, VA. 

STATEMENT OF DR ARTHUR KORNHABER 

Dr. Kornhaber. Honorable Chairman and members of the com- 
mittee, thank you very much for inviting me here today. I have 
been studying the relationship between grandparents and grand- 
children for over 8 years now and have traveled over the country. 

I have submitted to Dr. Statuto a paper called Unwilling Grand- 
parent-Grandchild Divorce, which examines the issue from a more 
objective point of view and, two, emerged from talking to about 30 
grandparents and grandchildren and parents involved in this issue. 

Ms. Ferraro. Mr. Chairman, might I ask Dr. Kornhaber to give 
the committee some idea of his background? 

Dr. Kornhaber. I am a child and family psychiatrist and presi- 
dent of the Foundation for Grandparenting. I started the Founda- 
tion after writing a book entitled, "Grandparents and Grandchil- 
dren, the Vital Connection." 

I have studied the relationships between grandparents and 
grandchildren in great depth. The main conclusions of the study of, 
"Unwilling Divorce of Grandparents and Children," is that grand- 
parents lose visitation rights with their grandchildren, because: One, 
the importance of grandparents to grandchildren is unknown in 
our society — and that includes judges and even people in the help- 
ing professions; two, our society has no role for the aged, and wor- 



51 

ships physical beauty, socioeconomic and political power as an 
ethic; three, our society ignores the importance of the family in 
general, especially the three-generational family, and it also ig- 
nores the role of emotional attachments in human happiness. In 
such a society, grandparents and grandchildren are not important. 

What I am interested in doing is talking about more than the un- 
willing grandparent-grandchild divorce issue. As members of the 
committee on 

Mr. BiAGGi. Excuse me. Doctor. 

You seem to be talking extemporaneously. That is perfectly 
proper. Bearing that in mind, we will include your entire state- 
ment in the record. 

Dr. KoRNHABER. Since you are going to legislate and since you 
are in an important position to change the emotional tone of this 
country concerning the aged, I think I can give you some reasons 
and some support and some ways to do this. I would like to first 
share my findings about the importance of the relationship of 
grandparents to grandchildren, what that relationship does for 
both generations, and why it is important to all three generations. 

In the natural order of things, generations emerge telescopically 
one from the other genetically, every child is the sum of two par- 
ents and four grandparents. The child in the womb possesses in- 
stincts, temperaments and emotions that are not his or hers alone. 
Psychologically, every child develops not only in the world of its 
parents but within the larger world of its grandparents, of its fa- 
ther's fathers and its mother's mothers. 

There is a natural, organic relationship between the generations 
that is based on biology, verifiable psychologically and experienced 
as feelings through emotional involvement. What we found in our 
8-year study is that our society does not honor this bond. 

What I find marvelous about the people who are fighting to see 
their grandchildren — of over 1,000 people in our study, only 100 
grandparents were interested in grandparenting — is that they are 
going against the national trend of shearing grandparents from 
family structures. 

Our society does not honor this bond. Indeed, many grandparents 
have been sheared from the foundation of the natural three-gener- 
ational family, leaving the nuclear family with surrogate grandpar- 
ents, self-appointed experts, and paid strangers. 

Where have all the grandparents gone? 

If social theorists and government planners are to be believed, 
many grandparents have shed their identities and joined the ranks 
of the aged, all the more tragic because there are more grandpar- 
ents alive today than ever before. In the next 60 years, demogra- 
phers predict, the over-65 population will double. Because of this 
graying of America and its effects on the economy, some experts 
envision an era of unprecedented intergenerational strife in an 
age-segregated society where the aged will no longer have the love, 
respect, and support of their juniors. I am concerned about this. 

Children who have been abandoned by their grandparents will 
not be kindly disposed toward them. The social and emotional re- 
sults of this abandonment are evident; a chaotic younger genera- 
tion, a confused and harassed middle generation, and an unin- 
volved older generation. 



52 

Our inquiry into the nature of the relationship between grand- 
parents and grandchldren over the past 7 years has shown that not 
only are grandparents and grandchildren important to one an- 
other, they are indispensable for one another's emotional well- 
being. 

Three of the most important findings of our study show: 

The grandparent-grandchild bond is second only in emotional im- 
portance to the bond between parents and children. 

Problems that are directly passed on from grandparent to parent 
are not directly passed on from grandparent to grandchild. Nature 
gives grandparents another chance. I think this is very important 
for establishment of a law for this issue, because children will only 
have problems with their grandparents for the most part because 
their parents have problems with the grandparents. If the children 
are isolated from the grandparents and they do not have direct 
connection with their grandparents, when you put a grandchild 
and a grandparent together, something wonderful happens. 

Grandparents and grandchildren affect one another only because 

they exist. 

Some other findings of the study show that grandparenting is a 
natural instinct rooted deeply within our biological make-up and 
manifested by thoughts, feelings, and behavior. Before the grand- 
child is born, a grandparent undergoes a mental rehearsal for the 
role he will play as a grandparent. The way an individual views 
grandparenthood is dependent upon his experience as a grandchild 
and the way his society views the state of grandparentood. 

Grandparenthood is not celebrated in an ageist society. When the 
grandchild is born, special thoughts and feelings and behavior are 
experienced by new grandparents. There are feelings of joy and a 
real internal push to want to hold and to see that child, which is a 
very biological need. 

The children with vital connections are close to grandparents, 
are very special and different from kids without grandparents. The 
kids who have a close relationship to at least one grandparent bio- 
logically, or even an elderly person, are different. They are deeply 
rooted in the family and the culture, more patriotic, do better in 
school, are emotionally secure in the knowledge that there are 
many people who care for them. They are not ageists because they 
have older people who love them. Indeed, they look forward to old 
age because they feel there is a role for older people. 

They are not sexist because grandmothers and grandfathers do 
about the same things. These children have a role model for the 
future and therefore do not fear old age. They have a sense of 
social immunity, a place to go apart from their parents and the 
peer group when they have problems. We call it an emotional sanc- 
tuary. They feel a very powerful sense of pride and shame, some- 
thing in children today that has disappeared. They know if they 
don't do well in school they are going to dishonor their family and 
dishonor and shame and pride is an ethic that is disappearing from 
the American children because you have to have people to bounce 
that off of, and grandparents have time to do this. Thus, these kids 
believe in social order. 



53 

Grandparenting offers emotional work for the older generation. 
This is natural work for older people. In our country we don't have 
any other work for the elderly. 

Grandparents have roles that are unique. They are similar to the 
parent's role because grandparents can fulfill the role of parents. 
They are different from parents' roles because a grandparent has 
already been a parent, while a parent has not been a grandparent. 
Grandparents' roles are diverse and dynamic. With time, their 
roles grow in breadth and depth as the vital connection with a 
grandchild becomes stronger. 

At first, a grandparent's role is titular, conferred by the birth of 
a grandchild. Immediately, a grandparent becomes a living ances- 
tor and a role model for the child, a future template for the child's 
own grandpaternity. 

There is a person 94 years old in Appalachia who is wheeled out 
to all the family occasions and he just sits there at the table and 
blesses everybody. Kids love him. They love to touch him and they 
love his wrinkles and he stands for something and doesn't really 
have to do anything. 

As a mentor, grandparents teach children things that they learn 
nowhere else. When the child's parents aren't available grandpar- 
ents play the role of nurturer, the second line of defense between 
children and social agencies. Grandparents nurture grandchildren 
indirectly by supporting their parents in time of need, especially 
important in today's society which places great socioeconomic 
stress on the parent generation. When grandparents and grandchil- 
dren spend a great deal of time together, they become pals. 

There is a young man in Nantucket who doesn't go to school be- 
cause his grandfather is a fisherman and he skips school and goes 
on the boat with his grandpa. His father was upset because his 
grandfather took him in a bar and started drinking with him. But 
it is an alliance between the generations — the old saying, they have 
a common enemy, you know. These roles give fulfillment to elders' 
lives. They are the culmination of a lifetime accumulation of 
knowledge and wisdom and emotional experience applied to the 
rearing of their young. It is, as Erik H. Erikson calls it, generati- 
vity in its most basic form. 

Concerning grandparent visitation rights, grandparents and 
grandchildren belong together because they have a direct relation- 
ship, exclusive from their all-important relationship to the middle 
generation. 

Mr. BiAGGi. Excuse me, Doctor. We are generally going to recess, 
but this has been happening all morning and it is consuming an 
awful lot of our time. I have read your testimony. I read testimony 
at 3 o'clock this morning simply because I could not sleep. I read 
everyone's testimony, but the other members and the staff mem- 
bers would like to hear testimony. I would like unanimous consent 
while we are going to vote that staff be authorized to conduct the 
hearings. 

Without objection, so ordered. 

Mr. Blancato. Please proceed. 

Concerning the issue of grandparents' visitation rights, it is 
therefore obvious that grandparents and grandchildren have a 
right to celebrate their relationship with one another as long as a 



54 

grandparent is capable of just being with their grandchild. This is 
clear in light of the findings of our studies which show that grand- 
parents rarely commit the same mistakes twice, they rarely hurt 
their grandchildren. 

Most children who were angry at their grandparents felt that 
way because their parents were angry at their grandparents. Their 
anger was most often due to the fact that they mirrored their par- 
ents' perception of their grandparents. Left alone with their grand- 
parents they were quite happy, although they were hesitant to 
report this to their parents. It is therefore clear that in cases of 
family feuds, where death or divorce creates blended famihes that 
wish to divorce grandparents from their grandchildren, the law 
should support the right of the child to have access to a beloved 
grandparent. Thus we support a uniform grandparents' visitation 
law for the following reasons: It establishes the importance of the 
grandparent-grandchild relationship and the importance of the 
three-generational family in American life, and it provides for rec- 
onciliation and hopefully a continued visitation of the grandparent 
and the grandchild during any type of litigation. 

In other words, in no way should the visitation of the grandpar- 
ent with the grandchild be stopped, and I strongly feel that the 
way to do this is to have a strong grandparent visitation rights law 
and subsequently to have any litigants referred to a family court of 
people who are learned about the importance of the relationship 
between grandparents and grandchildren, that visitation be contin- 
ued, and then work from that point. 

[The prepared statement of Dr. Kornhaber follows:] 



55 



IHE PREPARED STATEMENT OF DR. ARTHUR KORNHABER, MT. KISCO, N.Y., PSYCHIATRIST 
AND FOUNDER, FOUNDATION FOR GRANDPARENTS, COARTHOR, "GRANDPARENTS-GRAND- 
CHILDREN, THE VITAL CONNECTION." 

The Vital Connection 
livery time a child is born, a grandparent is born too. In 

the natural order of thinps the generations emerge telescopic- 
ally, one out of the other. Genetically, every child ia the sum 
of two parents and four grandparents. The child in the womb al- 
ready possesses instincts, temperament, emotions not his or hers 
alone. Psychologically, every child develops not only in the 
world of its parents but within the larger world of its grand- 
parents, of its "father's fathers'" and its "mother's mothers*". 

There is a natural, orgamic relationship between the generat- 
ions that is based on biology, verifiable psychologically and 
experienced as feelings through emotional involvement. 

But unfortunately, for the most part, our society does not 
honor this bond. Indeed, many grandparents have been sheared 
from the foundation of the natural three-generational family, 
leaving the "nuclear" family with "surrogate grandparents", 
self-appointed "experts" amd paid strangers. 

Where have all the grandparents gone? If social theorists 
and government planners are to be believed, many grandparents 
have shed their identities and joined the ranks of the "aged", 
all the more tragic because there are more grandpgirents alive 
today than ever before. In the next sixty years, demographers 
predict, the over-65 population will double. Because of this 
"graying of America" and its effects on the economy, some ex- 
perts envision an era of unprecented intergenerational strife 
in an age-segregated society where the aged will no longer 
have the love, respect, and support of their juniors. Children 
who have been abandoned by their grandparents will not be kind- 
ly disposed toward them. The social and emotional results of 

this abamdonment are evident; a chaotic yoiinger generation, a 
confused and harrassed middle generation and an uninvolved older 



56 



(2) 



generation. A humane and conscionable society must change 

this deplorable state of affairs. 

Are grandparents and grandchildren really important to one 

another? 

Our inquiry into the nature of the relationship between 

grandparents and grandchildren over the past seven years 

has shown that not only are grandparents and grandchildren 

important to one another- they are indispensable for 
one anothers emotional well-being. 

Three of the most important findings of our study show: * 
-The grandparent-grandchild bond is second only in emotional 

importance to the bond between parents and children. 
-Problems that are directly passed on from grandparent to 

parent are not DIRECTLY passed on from grandparent to 

grandchild. Nature gives grandparents another chance. 
-Grandparents and grandchildren affect one another only 

BECAUSE THEY EXIST. 

More specifically our study showed that: 

Grandparenting is a natural instinct rooted deeply within 
our biological make-up and manifested by thoughts, feelings 
and behavior. Before the grandchild is born a grandparent 
undergoes a mental rehearsel for the role he will play as a 
grandparent. The way an individual views grandparenthood is 
dependent upon his experience as a grandchild and the way his 
society views the state of grandparenthood. Grandparenthood 
is not celebrated in an ageist society. When the grandchild 
is born special thoughts and feelings are experienced by 
Tiew grandparents. They also experience an overwhelming urge 
to see and hold their grandchild. . .or to see a photograph 
if they are far from the child. When these powerful feelings 
are followed, and the new grandparent shares the child's 
early life, and helps the childs' parent- a vital connection 
is formed... an enduring emotional bond that is cemented 
by time together and emotLclnl committment. 



*For details see"Thc Vital Connection. Grandparents/ 
Grandchildren" by Arthur Kornhaber M.D. and Kenneth L. 
Woodward. Doubleday /Anchor . 



57 

(3) 

Children with vital connections to grandparents are special. 

Chi| dren who have close relationships to at least one 
grandparent arc different from those children with 
intermittent or infrequent grandparent contacts Not only 
are these youngsters deeply rooted in their family and their 
culture, they are emotionally secure in the knowledge that 
thef:E are many people who care about them. They are not 
ageist because they have older people who love them. They 
are not sexist because grandmothers and grandfathers do 
about the same things. These children have a role model 
for the future and therefore do not fear old age. They 
have a sense of social immunity- a place to go apart from 
their parents and the peer group when they have problems. 
Grandparents offer grandchildren an emotional sanctuary from 
the everyday world. Loved grandchildren feel a deep sense 
of pride in their families and their nation. Thoy know 
that their behavior reflects upon the many people who care for 
them. Thus they are highly socialized. 

Grandparents roles offer "emotional" work for the older 
t ^oncration. 

Grandparents roles are unique. They are similar to the 
parents role because grandparents can fulfill the role 
of parents. They are different from parents roles because a 
grandparent has already been a parent^ while a parent has 
not been a grandparent. Grandparents roles are diverse 
and dynamic. With time, their roles grow in breadth and depth 
as the vital connection with a grandchild becomes stronger. 
At first, a grandparents' role is "titular" .conferred by the 
birth of a grandchild. Immediately, a grandparent becomes a 
living ancestor and a role mode lfor the child... a future 
template for the childs own grandpaternity . 
Once an intimate relationship is established grandparents 
become family historians and archivists and a living link 
to the past. As a mentor grandparents teach children things 
that they learn nowhere else. When the childs parents 
aren't available grandparents play the role of nurturer- 
the second line of defense between children and social 
* Only 10°'o of a national sample of over 700 children 



58 



(4) 



agencies. Grandparents nurture grandchildren indirectly by 
supporting their parents in time of need- especially important 
in todays society which places great socio-economic stress 
on the parent generation. When grandparents and grandchildren 
spend a great deal of time together they become cronies- 
pals. In a deep relationship grandparents become wizards 
in the eyes of their young grandchildren. Wizards make 
bread from flour and pull fish from water... and take their te'ith 
c/Ut- wondrous things to young children. 
These roles give fulfillment to Elders*lives . They are 
the culmination of a lifetime accumulation of knowledge 
and wisdom and emotional experience applied to the 
rearing of their young. It is, as Erik H. Erikson calls it, 
"generativity" in its most basic form. 

Grandparent Visitation Rights 
Thus grandparents and grandchildren belong together because 

they have a direct relationship- exclusive from their 

all important relationship to the middle generation. 

Concerning the issue of grandparents visitation rights it 

is therefore obvious that grandparents and grandchildren 

have a RIGHT to celebrate their relaticnship with one another 

as long as a grandparent is capable of just being with 

their grandchild. This is clear in light of the findings of 

our studies which show that grandparents rarely commit 

the same mistakes twice... they do not hurt their grandchildren. 

Most children who were angry at their grandparents felt that 

way because their parents were angry at their grandparents. 

Their anger was most often due to the fact that they mirrored 

their parents perception of their grandparents. Left alone 

with their grandparents they were quite happy, although they 

were hesitant to report this to their parents. 

It is therefore clear that iV cases of family feuds, where 

death or divorce creates "blended" families that wish to 

"divorce" grandparents from their grandchildren^ the law 

should support the RIGHT of the child to have access to 

a beloved grandparent, (see proposed Uniform Visitation Rights) 

-The role of grandparent is not limited to that of biological 
grandparent. Elders can also fulfill a "surrogate" grand- 
parent role for the young and for themselves. 



59 



Grandparents Must Come Of Age In America 



We live in an aging society that has no function for the 
aged. Real grandparents- functioning grandparents- offer 
many of the solutions to the problems of alienation and 
generational separation that plague our society. Our 
study shows that grandparent ing is the only human function 
that supplies a pattern whereby the elderly, who fulfill 
their role as grandparents, biological or not, can be loved 

and respected and useful to their society. It is the 
true and natural work of old age. Grandparents have only 
to assume their rightful position as grandparent to their 
family and elder in the community to assure themselves an 
important place in their world and a meaning to the latter 
part of their lives. 

The Foundation For Grandparenting is dedicated to finding 
ways to help grandparenthood become a celebrated rite of 
passage and to raise the public consciousness concerning 
grandparenthood as an important and natural life stage. 
In addition we are designing projects that will demonstrate 
the value of a multigenerational society where the old 
and young work together .( See Centrum Project). 
The federal government would do well to energetically 
suppport such projects by setting up a department 
of Intergenerational Studies and Projects, as a new agency 
or under the aegis of an existing one, that would be 
dedicated to re-knitting the generations and promoting 
healthy and vibrant three-generational families. This 
endeavor would not only supply "emotional" work for the 
elderly but would create a nation of well-loved youngsters 
who could change the emotional tone of America in only 
twenty years. Our studies have demonstrated that this is 
possible by giving each youngster dedicated and loving 
elders and plenty of time with them. This is what the 
Centrum is all about. This must be done before we raise a 
generation of youngsters whose only knowledge of the elderly 
will be the inane images offered to them by television. 



60 




Tel. (914) 24l-()682 



I ( )l JNI )A I l( )N 1 ( )l< ( ;i<ANI )l 'AMI IN 1 IN< i 

i(> Wcsi llyiiii Avcmic 

Ml. Kis( (>. Nt'w York 



Uniform GrandparentaJ Visitation Rights — 

(1) Notwithstanding the award of any child by adoption, dependency, 
custody, relinquishment, or otiierwise, ail children shall be entitled to have 
reasonable grandparental visitation, and every grandparent shall be entitled 
to reasonable visitation rights unless the court finds after a hearing that 
visitation by a grandparent would endanger the child's physical health or 
significantly impair his emotional development. 

(2) The court may make or modify an order grant ing or denying grand- 
parental visitation rights whenever such order or modification would serve 
the best interests of the child; but the court shall not restrict a grand- 
parent's visitation rights unless it finds that the grandparental visitation 
would endanger the child's physical health or significantly impair his emo- 
tional development. 

(3) The term "grandparent" as used in the act shall include all of 
the natural and adoptive parents of all of the child's natural and adoptive 
parents . 

Roger Stevens 



61 




Tel. (OI4) 241 (H>M2 



i-ODNDAiioN ran {;i<ani)I'ai<i:n i inc; 

lO \\«Sl ll>.lll AXCIUIC 

MI. Kisco. New ^Ork 
l()r>4«> 



THE CENTRUM PROJECT 

A Five-Year Demonstration Project Of The 
FOUNDATION FOR GRAN DPAREN TING 



I - The Problem 

In contemporary America the generations live in different 
worlds. Each generation, isolated within its respected social 
stratxm: the young at school or in other caretaking institutions, 
the middle generation engaged in the work world, and the elder 
generation isolated unto itself. Many of today's children 
are in a world peopled by too few adults. 

People of different generations spend little time with 
one another. The greater part of their time is spent among 
their age-peers, thus bringing about an appalling similarity 
of experience that fosters "ageism" and places generations in 
adversarial roles. Young children are warehoused in day-care 
centers at a time in their lives when they need deep, close, 
reliable, and long-term relationships. In "centers" and schools 
they are exposed to repeated separations from teachers, due to 
staff turnover and grade promotion which prevents the forming 
of close attachments. 

Too often the classroom population is disproportionate 
to the affordable teaching staff. The "factory" school system 
is the primary mode of education available to our young today. 
Childrens' emotional, spiritual and creative needs are not met 



62 



by such a system. Human, emotional values are insufficiently 
taught in our technologically oriented schools. 

The aged are isolated from the young by their own attitudes 
and because there is no "life after work" for them. The wisdom 
and experience they have accumulated over a lifetime has no 
expression in our culture. After work there is little future 
or need for elder Americans. 

The middle generations are caught between their need to 
parent and powerful socioeconomic pressures that often require 
both parents to leave home to work - abandoning their children 
to "paid strajigers." 

With the increasing divorce rate, and more and more 
"blended" families, generational stratification is increasing; 
more and more grandparents are moving away from their families. 
The roles that elders play for the young are being dissolved. 
Research shows that language and tradition, hainded down from 
grandparent to grandchild during the child's earjy years, is, 
for the most part, being lost to the present generation of 
youngsters who are being raised in greater and greater isolation 
with the television set replacing people in their lives. 
Grandparents/Grandchildren; The Vital Connection by Arthur 
Kornhaber, M.D. and Kenneth L. Woodward documents these findings 
in greater detail. 
II - A Solution 

The object of the Centrum is to bring the generations 
together by fostering personal attachments and free-flowing 
communication between the yoxing and the old. This is achieved 



63 



■3- 



simply by having them all spend a great deal of time together 
in the same place. It is in this type of emotional climate 
that "vital connections" are formed. Not only are the "aged" 
supplied with a "job" but the yoimg flourish and learn from 
caring and attentive elders what they can learn nowhere else. 
The knowledge that elders have accumulated over a lifetime can 
be passed on to those who are more than eager for it. 

Numerous other benefits are offered by a Centrum. It 
is the optimum social environment for children who need adult 
attention, i.e. children with learning disabilities, from 
broken homes or no home at all. The "treaters" are the grand- 
parents who will have the time to teach, nurture, and serve 
as role models for the youngsters. 

It is our hope that, one day, the Centrum concept will be 
the primary model for elementary school education and for 
community care of the young and the old in our society. 
A - Structure 

The Centriim will be housed in a large building with space 
for the activities of several hundred people. This facility 
may be a presently existing school or other suitable structure. 
The "pilot" Centr\jm will accomodate eighty people. It will 
have classrooms, assembly rooms, workshops, kitchen, an "attic" 
and a "front porch." It will be near a park and a body of water 
(where Grandpa can teach fishing). 
B - Operation 

Buses will transport the day-care children, school children, 



64 



and elders to the Centrum. The Junior High and High School 
students who will also participate in Centrum life will be 
bused in and out during the day. Parents will supply their own 
transportation when they come to assist. The Centrum will 
geographically occupy a prominent place in the community, with 
easy access to other community institutions. 
C - Staffing 

The Centrum will be administered by a Director and 
Assistant Director who will see to the operation of the 
facility, assisted by a full-time secretary. The Director will 
also be in charge of the research. 

"Teams" of five children and one grandparent will be 

formed, and every five "teams" assigned to a teacher. The 

demonstration project will include seventy-five children, fifteen 

elders, three teacher-supervisors, and one "rotating" teacher. 

Of the seventy-five children not more than 30 percent will be 

under the age of five. In addition, a volunteer staff from the 

community and the junior and senior high and community colleges 

will be encouraged to participate. 

Grandparents will be encouraged to meet with the families 

of their "grandchildren." 

Grandparents will stay with the children until the children 

are promoted to junior high school. Once promoted, they 
will return to the Centrum to work with new youngsters and 
to maintain contact with their "grandparents." Thus 
children will not have to undergo unnecessary repeated 
losses of teachers and grandparents they have come to love. 



65 



D - Program 

As the Centrum is multigenerational , it will be like a 

one-room schoolhouse in spirit: 

Academic work will be emphasized, with a focus on doing 

one's best rather than in competition with others. 

Personal and creative skills - handcrafts, music, painting, 

cooking and so forth - will be taught by grandparents. 

Social and emotional skills will be augmented using the 

grandparent as mentor. Language and ethnic history will be 
stressed wherever possible. 

Grandparents will serve as tutors for children who need 

remedial work. No childs' individual needs will be ignored. 
Grandfathers, particularly, will be recruited to supply the 
young with the male role models so sorely lacking in our 
society. 

E - Research Syllabus 

Ongoing clinical research will demonstrate the benefit of 
the Centrum project. The children's I.Q.'s will be tested, and 
other personality factors such as self-image, their feelings 
about older people, their degree of alienation and depression. 
School performance will be closely monitored. 

Elders also will be tested for personality, self-image, 
and depression. 

Tests will be administered annually during the five-year 
span of the demonstration project. The same tests will be given 
to a control group of seventy-five children attending a "regular" 
school. The control group will be an integral part of the 
demonstration project. 
Ill - Objective 
A - Children 

The Centrum's goal is to produce a generation of children 



66 



-6- 



who have received the attention and caring of elders and who 
have newly enjoyed all the benefits that the young reared by 
grandparents have previously experienced. We speculate that 
children attending the Centrum will feel loved and cared for; 
they will be highly socialized aind will feel greater emotional 
security and be better rooted in their society than their peers. 
They will not be "ageist" nor fear old age. They will be exposed 
to ways of doing things other than those offered by their 
parents, their peers, or the media. Our research has amply 
demonstrated these facts. 
B - Elders 

Older people will be "energized" by their contact with the 
young. They will once again feel useful and needed. The 
Centrum can give meaning to their lives , bolstering ego and 
self-image, and even offer paid employment for "emotional" work. 
C - Parents 

The generation in the middle, the parents of the children, 
will benefit from the feeling of security in knowing their children 
are well tended in their absence. (The Centrum will be open from 
81OO a.m. to 9iOO p.m.). 
D - Community 

The Centrum will become the emotional heart of the community. 
We intend that it will reknit the generations and create a true 
multigenerational society in which the young, the middle, and 
the old mutually nurture and care for one another, each in their 
own fashion Eind turn. 



Arthur Kornhaber M.D. 



67 



K'ATlOrJALLY ACCLAIh.ED 

No matter how grandparents act they affect the 
emotional well being of their grandchildren, for better or 
worse, simply because they exist. 

Every time a child is born, a grandparent is born too. 

"...a major contribution to self understanding in a world in 
which everyone has been left reeling from the pace and 
direction of social change over the past two generations." 

. . .The Nation 

"This is a new gospel song that we out to start singing 
more frequently and louder. (The authors) have given us the 
words and the music. Now to get them sung. 

...Karl Menninger M.D. 

"The case studies in this book represent a first foray 
in an area left unexplained by developmental researchers. 
There are lessons here for social scientists, but even more 
for our alienated society." 

...Prof. Urie Bronfenbrenner 

"...a story of love that is rarely told and never more 
convincingly or lovingly." Prof. Phillip Zimbardo 

"...a landmark study." Sanford I.Finkel M.D. 

"...appealing and timely." Psychology Today 

For the first time, Grandparents/Grandchildren examines 
the nature of the relationship between grandparents and grand- 
children and its expression in contemporary American society. The 
Agenda for grandparents is a clarion call for grandparents 
to assume their place as the foundation of the three generat- 
ional family- and tells them how to do it. 



GRANDPARENTS 
GRANDCHILDREN 

ylTHEViTAL CONNECTION!^ 



ARTHUR KORNHABER. MP 
AND KENNETH LWOODWARD 



To order, mail coupon ta ; Please send me copies of 

Generations /Js '■ Grandparents/Grandchildren 

@ $11.95 per copy and $2.00 



P.O. Box 363 

Cross River N.Y. IO5I8 




Zip Code 
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for postage and handling. 

Nsime 

Address 

City 



68 

Mr. Blancato. Dr. Derdeyne. 

STATEMENT OF DR. ANDRE DERDEYNE 

Dr. Derdeyne. I appreciate the opportunity to address the staff 
members of this committee. 

Mr. Blancato. It is no less important in terms of the fact that 
the hearing record is complete. 

Dr. Derdeyne. Please permit me the joke. This is, however, not a 
joking matter. There certainly have been plenty of tears, sadness, 
fury, and tales of injustice here. I am a bit concerned in that I see 
myself as providing some balance here, which in view of what else 
has gone on today, will probably be perceived by some of the people 
here as being hostile to the grandparent rights movement. It is not, 
but please bear with me. 

I am a child psychiatrist. I am director of the child and family 
psychiatry training program at the University of Virginia. As time 
goes on, my work has revolved more and more about divorce, and 
about the complexities of the family regarding divorce. I am pri- 
marily a child psychiatrist. On those occasions when I go to court I 
make certain that I am a witness for the court. I see all parental 
parties. I do not go to <;ourt to help one parent win a custody suit 
against another, but in order to do the best I can for the child in- 
volved. Preferably, I am able to keep people from litigating the cus- 
todial issue. I attempt to make certain the court date leaves us 2 or 
3 months so that there is time to work things out with all the 
people involved. 

grandparents visitation: the spectrum from healthy family 
relationships to the exercise of rights 

If one leaves the word "right" out of it, the term "grandparent 
visitation" has a wholesome sound to it. 

Continuing contact between grandparents and grandchildren is 
part of the normal course of family life. When we consider grand- 
parent visitation as a legal issue, however, the situation changes 
markedly. The law of grandparent visitation, as well as other cus- 
tody and visitation law, defines the bottom line in relationships. 
Law which regulates human regulations is necessarily a blunt in- 
strument because it deals in relationships that have failed, where 
the finely tuned reciprocal aspects have ceased to function. 

Visitation laws and visitation determinations by courts are re- 
flective of difficult contentious situations. The visitor is effecting a 
forced entry over the resistance of the custodial parent. 

Continuing contact of grandparent and grandchild may be in- 
sured by successful litigation, but the adults' struggles, anger, or 
residual resentment can have some very unfortunate consequences 
for the child, which brings us to the central issue which I wish to 
bring to the attention of this subcommittee, the conflict of loyalties. 

conflict of loyalties 

In a book titled "Beyond the Best Interests of the Child," child 
psychoanalysts Anna Freud and Albert Solnit, and a professor of 
family law, Joseph Goldstein, articulated their concerns about the 
loyalty conflict for children after divorce. Their comments pertain 



69 

to the parents, but the principle of conflict between a parent and 
an emotionally close grandparent would be the same. The authors 
state that: 

Children have difficulty in relating positively to, profiting from, and maintaining 
the contact with two psychological parents who are not in positive contact with each 
other. 

I might add that in a couple of the cases that people have told 
about, at this hearing, were the law to go along with Goldstein, 
Freud and Solnit's recommendations about psychological parent- 
hood, these cases would not come under grandparent visitation 
problems, but under custody issues, and the people telling their sto- 
ries here would from the facts presented clearly be given custody of 
the child because they were the psychological parents and provid- 
ing a good home. These people Goldstein, Freud, and Solnit, are not 
as radical as they might seem. 

These authors accord to the loyalty conflict such importance that 
they would have the custodial parent entirely in control of visita- 
tion, whether with the noncustodial parent, grandparents, or 
others. This holding has been subjected to considerable criticism. In 
the second edition of "Beyond the Best Interests of the Child," the 
authors elaborated their position on visitation: 

We reasoned, always from the child's point of view, that custodial parents, not 
courts or noncustodial parents, should retain the right to determine when and if it 
is desirable to arrange visits. We took and continue to take this position because it 
is beyond the capacity of courts to help a child to forge or maintain positive rela- 
tionships to two people who are at cross-purposes with each other because, by forc- 
ing visits, courts are more likely to prevent the child from developing a reliable tie 
to either parent; and because children who are shaken, disoriented, and confused by 
the breakup of their family need an opportunity to settle down in the privacy of 
their reorganized family with one person in authority upon whom they can rely for 
answers to their questions and for protection from external interference. 

This society and its courts find this view quite unacceptable be- 
cause it runs so counter to the interests of the adults to have con- 
tact with their children. However, these authors' ideas regarding 
children's loyalty conflicts reflect immensely important issues to 
any child attempting to relate to important adults who are in con- 
flict with each other. 

I offer two examples of children involved in their parents' diffi- 
culties. The first comes from Henry James in his 1906 work, "What 
Maisie Knew". This novel sensitively describes a situation of a 
young girl caught in the conflict of her parents. Custody was split 
between her parents, 6 months with one and 6 months with the 
other. 

They had wanted her, not for any good they could do her but for 
the harm they could, with her unconscious aid, do each other. She 
should serve their anger and seal their revenge, for husband and 
wife had been alike crippled by the heavy hand of justice which, in 
the last resort, met on neither side their indignant claim to get, as 
they called it, everything. If each was only to get half, this seemed 
to conclude that neither was so base as the other pretended or, to 
put it differently, offered them as both bad indeed since they were 
only as good as each other. 

The mother had wished to prevent the father from, as she said, 
so much as looking at the child. The father's plea was that the 
mothers's slighted touch was simply contamination. These were the 



70 

opposed principles in which Maisie was to be educated; she was to 
fit them together as she might. 

The second example is that of a child in my own practice. This 
markedly depressed 8-year-old boy had been overwhelmed for the 
past 3 years by the intense postdivorce struggles of his parents. 
This included things like when his father appeared at the end of 
season soccer picnic, his mother became furious and made him 
come home. 

Upon being asked three wishes, he said that he would like a time 
machine in order to go back in time. When I asked if that was so 
that he could go back to make his parents' marriage better, he 
tearfully responded that it was. He had no other wishes. Instead of 
this 8-year-old entering the expanding world of friendships, soccer, 
and whatever; he spent most of his time concerned with, preoccu- 
pied with, and fearful of the conflict between his parents. 

These examples have to do with the divorce of parents; the posi- 
tion of the child, however, is similar in any situation where the 
child is trying to relate to psychlogically important adults who in 
Goldstein, Freud, and Solnit's terminology "are not in positive con- 
tact with each other." The child's feelings of distress arise from his 
or her internal conflict, which feels the same whether it relates to 
two parents or to a parent and a grandparent who are in conflict. 

Children caught in even the mildest conflict between their di- 
vorced parents frequently volunteer or acknowledge their percep- 
tion that their being with one parent makes the other parent mad 
or sad. In some more severe instances, the pain to the child of 
going from one parent to the other is so great that the child comes 
to wish to stay with one parent and not to visit the other because 
of the relief from internal turmoil. 

WHAT IS IN THE BEST INTEREST OF THE CHILD IN GRANDPARENT 

VISITATION 

First of all, the ideal situation for the child is for all the adults to 
maintain communication with each other and to be able to cooper- 
ate with each other with regard to the child. This facilitates the 
child's being able to maintain contact with grandparents and 
others of importance from the past. If that situation does not 
obtain, then the first response might be to seek help from a thera- 
pist or another helping person who might be able to gain the confi- 
dence of all the adult parties. What is being strongly advocated in 
this hearing, of course, is that the grandparent go to legal means to 
achieve visitation. 

Whether grandparent visitation is awarded or not depends upon 
the court's assessment of the value of continuing the child's rela- 
tionship with the grandparent weighed against the amount of dis- 
ruption to the child's immediate family unit and the amount of 
animosity the various adults hold for each other. This approach ap- 
pears to me reasonably suited to deal with the major issues in- 
volved. However, I think that courts do not sufficiently appreciate 
the significance and destructive potential of loyalty conflicts to the 
child, whether it is parent against parent or parent against grand- 
parent. 



71 

Although important relationships between grandparents and 
grandchildren can be salvaged by legal means, under these types of 
circumstances what is achieved can be far less than ideal. Contact 
with grandchildren achieved by less adversary means is surely 
more satisfactory and more likely to be maintained through the 
years than it is after a successful legal assault. 

RECOMMENDATIONS 

Concerns grandparents have about losing contact with their 
grandchildren after divorce, death, or other family disruption af- 
fecting the children's parents are certainly understandable, to say 
the least. I remain concerned, however, about grandparents joining 
what is all too often a postdivorce legal brawl already involving the 
child's parents. 

All of you know perhaps personally, and maybe through contact 
with friends or other people, what marital separation, for example, 
does to many people. How many nice, capable, friends do you have, 
who are so distressed, so upset, that they engage in bizarre, angry, 
or furious, behavior, which is destructive not just to others but also 
to themselves. 

The changes in the field of child custody and visitation in the 
United States which have occurred over most of the last 300 years 
have evolved gradually as part of other social changes. In contrast, 
laws upholding grandparents' rights to visitation have burst quite 
recently upon the scene. 

What happens when grandparents are successful in gaining 
access to children, to use the legal term, as a result of emotionally 
charged and expensive legal contests? 

What happens when they fail? When I wrote this I had not 
heard the testimony of this morning, but it is obviously horrifying 
to the people who have told their stories in this hearing. 

Are there other approaches with less destructive potential than 
the legal one? 

Dr. Kornhaber has presented his impression that grandparents 
as a group are particularly able to remain above the postdivorce 
fray and thereby are able to contribute positively to their grand- 
children. Indeed, in instances where parental contention is high or 
parental functioning is impaired by depression, which are common 
situations, grandparents may be in a unique position to provide 
their grandchildren a very necessary emotional haven. 

In my own experience, grandparents' roles after their child's di- 
vorce have varied from very constructive ones to being completely 
caught up in attacking their child's former spouse or even attack- 
ing their own child, with grave consequences for their grandchil- 
dren. What characteristics differentiate grandparents whose roles 
are more likely to be constructive from those whose contributions 
are more likely to detract from their grandchild's well-being? 

In Mrs. Highto's comments earlier, in which she spoke about 
grandparent's suffering from the parental generation's cruelty, 
hate, spite, and vengeance, she should have included grandparents 
exhibiting cruelty, hate, spite, and vengeance also, because grand- 
parents have those emotions too. In these types of situations we are 
so threatened, we are shaken to the roots of our identity and our 



72 

being, and we get extremely mean and irrational, and this capacity 
is possible for all of us. We are all human. 

THE NEED FOR RESEARCH 

In sum, this is an area where the need for scientific study of the 
issues far exceeds the need for more changes in the State or Feder- 
al legal structure or practice. What is needed at this time is fund- 
ing for comprehensive and expert research to provide answers to 
some of the questions posed above, and a host of others. 

OTHER APPROACHES TO ENHANCING THE GRANDPARENT-GRANDCHILD 

BOND 

On the other hand, I do not question the value to children of con- 
structive grandparental involvement, and see great value in explor- 
ing other than strictly legal ways to enhance grandparent involve- 
ment and contact with their grandchildren. I see this as psychologi- 
cally helpful in most instances to all the persons involved as well 
as providing a link with the past which is valuable for individuals 
as well as for our society as a whole. 

I could also give a speech here about the positive aspects of 
grandparents to grandchildren, grandchildren to grandparents, and 
a few testimonials from my own family, but we don't need that. 
Sufficient to say, these are terribly important issues and horrible 
things are lost to everyone when they are lost. My concern is, can 
we simply pass a law and regain them? 

Dr. Kornhaber has found probably the best way to facilitate the 
continuing contact of grandparents and grandchildren. His book is 
reminding the lay public as well as therapists of the importance 
grandparents and grandchildren can have for each other. This ap- 
proach offers an impetus for change which introduces less potential 
for mischief than do coercive methods. 

I think that in-spite of the pain and hopes of most of the people 
in this group here, establishing legislation will not adequately solve 
their problems. I must say that in this area, and the area of family 
law as a whole, I see too many instances where today's solution be- 
comes tomorrow's problem. We are stuck with immensely difficults, 
complex human emotions having to do with loss and the inability 
to tolerate it, to be very constructive when awful situations occur 
such as have been described here today. 

I do not think that the major solution is going to come out of the 
legal system. I do not see how it can. These are not legal issues. 

Thank you. 

Mr. Blancato. Thank you. Doctor. 

I think under the terms of the unanimous consent agreement 
that was made by the chairman, we will assume the definition of 
conducting a hearing to be to continue to receive the testimony of 
the witnesses. If the two of you can remain behind in the event 
that the members when they return would like to ask questions — 
or we may ask you to respond to some questions in writing that we 
have prepared. 

We would like to call the final panel at this point, and, if you 
gentlemen can wait, we will reserve some questioning for them. 

The legal panel: Mr. Richard Victor and Dr. Judy Areen. 



73 

I am going to take the liberty, if I may, to request of the chair- 
man and also in appreciation and recognition of Dr. Areen's time 
constraints, which have been prevalent for several hours now, that 
she precede Mr. Victor in giving her formal statement. 

Dr. Areen? 

PANEL 3— LEGAL VIEWPOINT, CONSISTING OF RICHARD S. 
VICTOR, ATTORNEY, OAK PARK, MICH.; AND JUDITH AREEN, 
PROFESSOR OF LAW, AND PROFESSOR OF COMMUNITY AND 
FAMILY MEDICINE, GEORGETOWN UNIVERSITY MEDICAL 
CENTER 

STATEMENT OF PROFESSOR JUDITH AREEN 

Professor. Areen. I will present a summary of my statement. 

I understand there is permission to submit my full statement for 
the record. 

Mr. Blancato. Without objection. 

Professor Areen. It is with great pleasure that I appear before 
this subcommittee because you are dealing with a subject of great 
importance — as all our speakers have underlined — ties between 
grandparent and grandchild. The Justices of the Supreme Court 
have, in fact, recognized the importance of this relationship. 

Let me share with you briefly some of their words from a 1977 
decision. 

. . . Our decisions establish that the Constitution protects the sanctity of the 
family precisely because the institution of the family is deeply rooted in this Na- 
tion's history and tradition. It is through the family that we inculcate and pass 
down many of our most cherished values, moral and cultural. 

Ours is by no means a tradition limited to respect for the bonds uniting the mem- 
bers of the nuclear family. The tradition of uncles, aunts, cousins, and especially 
grandparents sharing a household along with parents and children has roots equally 
venerable and equally deserving of constitutional recognition. 

If your task were simply to provide support for such extended 
family ties in the face of unwanted government intrusion, as was 
the case in Moore v. City of East Cleveland, my talk would be 
briefer and your day shorter. But you are faced with the much 
more difficult problem of deciding what is an appropriate response 
by the government when there is a conflict between the members 
of a particular family. 

As a general guide, I would urge adherence to that familiar 
standard of doing what is in the "best interests of the child." While 
it has been widely — and I would add appropriately — criticized for 
being too vague, the best interests standard does at least direct the 
focus of concern to the child who is the person likely to suffer most 
when there is a conflict between adult members of a family. 

It is possible to apply the standard in ways that make it less 
vague, moreover. This is a way to constrain some of the abusive 
discretion by individual judges that we have heard described this 
morning. 

I would suggest that the subject of grandparent visitation might 
be addressed by several well-chosen presumptions which are a way 
of restraining judicial discretion. For example, when a child has de- 
veloped normally, and both parents and all grandparents are fit 
caretakers, it would seem sound to presume that a parent's wish to 
have the child visit with that parent's parents should be given pre- 



74 

sumptive weight even in the face of objections from that parent's 
former spouse. Notice that I am recommending a presumption. It 
could and should be rebutted in situations in which the former 
spouse proves to the court that contact between the child and 
grandparents in question would not be good for the child. 

Why have I used words like "presumption," "prove," or "rebut- 
ted", which all have the ring of courtroom to them? It is prcisely 
because the courtroom remains in our system of government the 
forum of last resort for families who cannot resolve their disputes 
privately. 

Clear presumptions that are followed in applying the standard in 
courts, of course, can decrease rather than increase litigation, by 
making clear to family members beforehand what most probably 
would happen if they were to go to court. 

Given the cost of litigation in time and emotions, as well as 
money — as we have heard described again and again this morn- 
ing — many will choose, and I submit that would be a positive 
change, to follow the presumptions in their private negotiations. 

This is a way mediation might be implemented. If you can medi- 
ate a solution acceptable to the parties on the private basis, it is 
preferable to going to court. 

We also have to consider, however, what happens when the medi- 
ation breaks down. That is why the courts are the forum of last 
resort. 

The proper application of the best interests standard is less clear 
when one parent dies, for then he cannot indicate directly his 
views on whether his parents should be able to see his child. Indi- 
rect evidence may be available, however, and if it demonstrates to 
the court that the parent would appear to have wanted contact to 
continue after his death, then the same presumption I advocated 
above when a living parent supports contact, appears appropriate. 

Any presumption in favor of continued contact should be 
strengthened, moreover, in my view, when there is evidence that 
the grandchild has established a relationship with a particular 
grandparent. 

For many years, unfortunately, most courts in this country have 
held that grandparents may not be granted visitation rights unless 
the custodial parent is proven unfit. Fortunately, a growing 
number of State legislatures, sympathetic to the value of contact 
with grandparents, have passed statutes in the last dozen years 
that establish a right of visitation for grandparents. These statutes 
do not condition the right on proving the custodial parent unfit, 
but only on proving that the visitation is in the best interests of 
the child involved. 

More than 40 States have now passed statutes on this issue. Let 
me refer briefly to three that I set out at length in my written tes- 
timony. 

California's statute is of interest because it applies not only to 
grandparents but to any other person having an interest in the 
welfare of the child. There may be situations where it might be an- 
other relative or even a biologically unrelated person who has been 
so important to that child that visitation is appropriate. 



75 

Second, the Connecticut statute anticipates one of the issues 
raised earlier this morning by applying to children who are illegit- 
imate and acknowledging biological ties even in that situation. 

Finally, the Minnesota statute, the most comprehensive of the 
three that I include for your information, struck me as important, 
first because it applies not only to grandparents, but to greatgrand- 
parents. 

As someone who has grandparents who are 95 and 93, and in 
good health in Vandalia, Ohio, and 2-year-old son, I would want 
their rights protected as well as those of my parents. 

In addition, Minnesota specifically recognizes strong protection 
when the children have lived with their grandparents for a year or 
more, a provision that I think would have resolved differently at 
least one of the cases we have heard described today. 

Until now, I have been addressing the problem of what should 
happen when the parents or guardians of a particular child are in 
disagreement about whether there should be contact between a 
grandparent and grandchild. 

The difficult issue of how best to implement such policies re- 
mains. We need procedural as well as substantive reforms. 

Most courts have not granted access to courts to grandparents 
after a divorce. Fortunately, the statutes I have already alluded to 
in many States do permit intervention by the grandparents even 
after divorce. 

Unfortunately, though, a number of these statutes have not yet 
addressed the problem of what should happen when a custodial 
parent remarries and the new spouse adopts the child. Adoption 
statutes, you understand, generally cut off all legal ties to a child's 
biological parent and family. 

Although these statutes were aimed primarily at resolving issues 
of inheritance, a number of courts — mistakenly, in my view — have 
construed them to cut off the visitation rights of the grandparents 
as well. 

A notable exception is a decision of the Supreme Court of New 
Jersey, in Mimkon v. Ford, decided in 1975, where that court, faced 
with the conflict between, on the one hand, a statute that permit- 
ted visitation to grandparents, and, on the other, an adoption stat- 
ute that appeared to cut them off, reached the conclusion that visi- 
tation should be permitted after adoption. 

Let me quote a little bit of their explanation, because it summa- 
rizes my own thoughts on the issue. 

. . . Interference by a natural parent with the relationship between the child and 
the adopting parents introduces alternative and conflicting authority figures in the 
child's life, creating tremendous emotional tension on the child and ultimately 
threatening to undermine the authority of the adoptive parents and their ability to 
make parental decisions. Grandparents ordinarily play a very different role in their 
child's life; they are not authority figures and do not possessively assert exclusive 
rights to make parental decisions. At best they are generous sources of uncondition- 
al love and acceptance, which complements rather than conflicts with the role of 
the parents. . . . 

It is biological fact that grandparents are bound to their grandchildren by the un- 
breakable links of heredity. It is common human experience that the concern and 
interests grandparents take in the welfare of their grandchildren far exceeds any- 
thing explicable in purely biological terms. . . . 

In view of this, we can only say that it is proper that in the unfortunate case of 
parental separation or death, grandparents should sometimes have privileges of visi- 



76 

tation even over the objections of the adoptive parents. It is not only the grandpar- 
ent's continued right to be with him, but also the fact that in such cases, the con- 
tinuous love and attention of a grandparent may mitigate the feelings of guilt or 
rejection which a child may feel at the death of or separation from a parent, and 
ease the painful transition. 

I have focused until now primarily on the positive aspects of 
grandparent visitation. But even the New Jersey Supreme Court 
cautioned that such visitation should be authorized over parental 
objections only when it would be in the best interests of that par- 
ticular child, warning that courts should not permit visitation by a 
particular grandparent when it would undermine the authority of 
the adoptive parents or otherwise create psychological conflict for 
the child. 

Justice Sullivan dissented from the majority position, noting: 

Here the trial judge ordered . . . visitation over the objections of the child, as 
well as the child's father and adoptive mother who felt that [the grandmother] has 
been a disruptive influence in their family unit. ... It may be that the child has 
been conditioned against her grandmother. If so, this is to be regretted, but if nur- 
turing the relationship between grandparent and grandchild is to be had at the ex- 
pense of the child's well being and the family unit in which she now lives, I have no 
doubt as to what a court should do. 

Justice Clifford, in dissent, added: 

Given the objection to visitation — be it well-taken or otherwise — I foresee contin- 
ued acrimony between the parties and a tug-of-war with Jill in the middle. . . . Ju- 
dicial interference in this sensitive area should generally be undertaken only with 
the greatest hesitancy and in this case not at all. 

This division among thoughtful decisionmakers should, if nothing 
else, caution us against rigid or mechanical approaches to intrafa- 
mily conflicts. 

To sum up my personal recommendations, I believe the trend of 
the last dozen years to permit grandparent visitation when it is in 
the best interests of the grandchild should be praised and indeed 
extended to those few States that have not yet passed appropriate 
statutes. 

Indeed, I would recommend amending those existing statutes 
which do not at present establish presumptions in favor of visita- 
tion in the conditions I have outlined above. 

I would also modify existing adoption statutes to permit grand- 
parent visitation following adoption by a stepparent, the position 
espoused by the majority of the New Jersey Supreme Court in 
Mimkon v. Ford. 

At the same time, I want to underscore the importance of always 
making these decisions in the context of the lives of a particular 
child and a particular grandparent. The law can coerce outward be- 
havior, but if the price is excessive psychological turmoil for one 
child, it is too high. 

In view of the complex nature of the issue you are addressing 
today, it becomes even more important to determine what is the 
most appropriate role for the Federal Government to play. On the 
one hand, both the variation in, and relatively recent date of. State 
legislative protection for grandparent visitation suggest it would be 
easier if we had a single, national standard. 

On the other hand, child custody matters have traditionally been 
left to the States. The one Federal statute that touches this area 
was explicitly intended to avoid inconsistent decisions by the courts 



77 

of two or more States involving the custody of one child. The lack 
of Federal standards governing custody decisions reflects an impor- 
tant constitutional constraint: even if Congress wanted to act, it 
does not appear to have the constitutional authority to mandate 
standards for child custody or visitation. 

There remains the role of providing guidance to States. It has 
been proposed, by some, that Congress might fund the drafting of a 
model act. 

While that step does not pose constitutional hurdles, it also may 
not accomplish much other than providing Federal funds to a con- 
sultant or two in view of the rather dismal history of model acts 
drafted by the Government ever being adopted by States. 

There is, by contrast, a quite distinguished record that has been 
compiled by the National Conference of Commissioners on Uniform 
State Laws, not because they are necessarily any wiser, but be- 
cause the very process of working a problem through that body, 
composed as it is of judges, law teachers and members of the bar 
from each of the States, the District of Columbia, and Puerto Rico, 
insures both national exposure, and a test of whether a proposal is 
politically viable. 

In 1965, the conference began work on a Uniform Marriage and 
Divorce Act. Unfortunately, that act, while it establishes standards 
and procedures for determining custody and visitation, deals only 
with visitation by parents. Visitation by grandparents — or any 
other adults who have developed strong ties with a child — is not 
discussed at all. 

At this point in time, seven States have adopted the UMDA. A 
useful next step might be to encourage the conference to revise the 
UMDA. 

I was delighted to hear the chairman of this subcommittee indi- 
cate he was going to use his influence to urge the conference to 
revise the UMDA or even to promulgate a separate, new uniform 
act that deals specifically with the issue of grandparent visitation. 

In the end, our Constitution provides that there is no shortcut to 
persuading the legislature and the bench in each and every State, 
and the District of Columbia, to provide adequate protection for 
grandparent visitation, not simply for the sake of grandparents, or 
even because it will benefit the grandchildren, but because we will 
all be strengthened in this Nation if we both acknowledge and sup- 
port family ties across the generations. 

[Professor Areen's prepared statement follows:] 

Prepared Statement of Judith Areen, Professor of Law and Professor of Com- 
munity AND Family Medicine, Georgetown University, Georgetown Universi- 
ty Medical Center 

It is with great pleasure that I appear before the subcommittee today because you 
are addressing a subject of such great human significance — the ties between grand- 
parent and grandchild. 

The Justices of the United States Supreme Court, in a plurality opinion, under- 
scored this significance in 1977 when they observed: 

"... Our decisions establish that the Constitution protects the sanctity of the 
fgimily precisely because the institution of the family is deeply rooted in this Na- 
tion's history and tradition. It is through the family that we inculcate and pass 
down many of our most cherished values, moral and cultural. 

Ours is by no means a tradition limited to respect for the bonds uniting the mem- 
bers of the nuclear family. The tradition of uncles, aunts, cousins, and especially 



78 

grandparents sharing a household along with parents and children has roots equally 
venerable and equally deserving of constitutional recognition. Over the years mil- 
lions of our citizens have grown up in just such an environment, and must, surely, 
have profited from it. Even if conditions of modern society have brought about a 
decline in extended family households, they have not erased the accumulated 
wisdom of civilization, gained over the centuries and honored throughout our histo- 
ry, that supports a larger conception of the family." Moore v. City of East Cleveland, 
431 U.S. 494 (1977) 

If your task were simply to provide support for such extended family ties in the 
face of unwanted government restrictions, as was the case in Moore v. City of East 
Cleveland, my talk would be briefer and your day shorter. But you are faced with 
the much more difficult problem of deciding what is an appropriate response by the 
government when there is a conflict between the members of a particular family. 

As a general guide I would urge adherence to that familiar standard of doing 
what is in the "best interests of the child." The best interests standard has with 
good reason become the universal principle followed by courts in this country for 
resolving conflicts over custody of, or visitation with, children. While it has been 
widely criticized for being too vague, the best interests standard does at least direct 
the focus of concern to the child who is the person likely to suffer most when there 
is a conflict between adult members of a family. 

It is possible to apply the standard in ways that make it less vague, moreover. I 
would suggest that the subject of grandparent visitation might be addressed by sev- 
eral well chosen presumptions. For example, when a child has developed normally, 
and both parents and al' grandparents are fit caretakers, it would seem sound to 
presume that a parent's wish to have the child visit with that parent's parents 
should be given presumptive weight in the face of objections from that parent's 
former spouse. Notice that I am recommending a presumption. It could and should 
be rebutted in situations in which the former spouse proves to the court that con- 
tact between the child and grandparents in question would not be good for the child. 

Why have I used words like "presumption," "prove," or "rebutted" which have 
the ring of courtroom to them? It is precisely because the courtroom remains the 
forum of last resort for families who cannot resolve their disputes privately. Clear 
presumptions that are followed in applying the best interests standard in courts, of 
course, can decrease rather than increase litigation over such issues, by making 
clear to family members before hand what most probably would happen if they were 
to go to court. Given the cost of litigation in time and emotions as well as money, 
many will choose, therefore to follow the presumptions in their private negotiations. 

If the parent who opposes contact with a grandparent is the child of that grand- 
parent, by contrast, my sense is that the presumption should be against visitation. 
Why do I advocate a difference in result depending on which parent opposes? Be- 
cause both presumptions reflect the common standard of allowing a parent to decide 
whether or not his parents should see his child. This standard in turn is a way of 
minimizing interference in a parent's rearing of his child, even by a former spouse. 

The proper application of the best interests standard is less clear when one parent 
dies, for then he cannot indicate directly his views on whether his parents should be 
able to see his child. Indirect evidence may be available, however, and if it demon- 
strates to the court that the parent would appear to have wanted contact to contin- 
ue after his death, then the same presumption I advocated above when a living 
parent supports contact, appears appropriate. 

Any presumption in favor of continued contact should be strengthened, moreover, 
in my view, when there is evidence that the grandchild h.as established a relation- 
ship with a particular grandparent. Conversely, evidence of an especially strong re- 
lationship between a grandparent and grandchild might be sufficient to overcome 
an objection even by the parent who is the child of that grandparent. 

For many years, by contrast, most courts in this country have held that grandpar- 
ents may not be granted visitation rights unless the custodial parent is proven 
unfit. 1 Fortunately, a growing number of state legislatures, sympathetic to the 



> Succession of Reiss, 46 La. Ann. 347, 15 So. 151 (1894) is generally recognl^d as the first 
case in which a grandparent actually sued for visitation privileges. The request was denied on 
two grounds: (1) a parent's obligation to allow a child is a moral but not a legal one; and (2) 
absent a showing that the custodial parent is unfit, the court should not order visitation. For 
more recent holdings see, e.g., Jackson v. Fitzgerald, 185 A.2d 724 (D.C. Mun. Ct. App. 1962); Lee 
V. Kepler, 197 So.2d 570 (Fla. Dist. a. App. 1967); Smith v. Painter, 408 S.W.2d 785 (Tex. Civ. 
Apps. 1966). See generally Note, Statutory Visitation Rights of Grandparents, 26 Cath. U. L. 
Rev. 387 (1977). 



79 

value of contact with grandparents, have passed statutes in the last dozen years 
that establish a right of visitation for grandparents. These statutes do not condition 
the right on proving the custodial parent unfit, but only on proving that the visita- 
tion is in the best interests of the child involved. 

More than forty states have now passed statutes on this issue. A closer look at 
three of them will give you a good idea of the range of approaches adopted. 

California has two relevant statutes. Civil Code § 197.5 applies when one parent is 
deceased. It provides in pertinent part: 

"(a) If either the father or mother of an unmarried minor child is deceased, the 
children, parents, and the grandparents of such deceased person may be granted 
reasonable visitation rights to the minor child during its minority by the superior 
court upon a finding that such visitation rights would be in the best interests of the 
minor child. 

"(b) In granting visitation rights to j)ersons other than the parents of the dece- 
dent, the court shall consider the amount of personal contact between such persons 
and the minor child prior to the application for the order granting them visitation 
rights. 

"(c) This section shall not apply if the child has been adopted by a person other 
than a stepparent or grandparent. Any visitation rights granted pursuant to this 
section prior to the adoption of the child shall be automatically terminated upon 
such adoption." 

When the parents are divorced but not dead, California provides in Civil Code 
§ 4601: 

"Reasonable visitation rights shall be awarded to a parent unless it is shown that 
such visitation would be detrimental to the best interests of the child. In the discre- 
tion of the court, reasonable visitation may be granted to any other person having 
an interest in the welfare of the child." 

Connecticut, by contrast, provides for grandparent visitation even when the par- 
ents are not divorced or dead. General Statute § 46b-59 provides: 

"The superior court may grant the right of visitation to any grandparent or 
grandparents of any minor child or children, upon an application of such grandpar- 
ent or grandparents, whether or not such child or children are legitimate, except 
the court may not make an order with respect to the parents of the father of any 
illegitimate child or children unless the father has acknowledged paternity in writ- 
ing, has been adjudicated the father by a court of competent jurisdiction or has con- 
tributed regularly to the support of the child or children. Such order shall be ac- 
cording to the court's best judgment upon the facts of the case and subject to such 
conditions and limitations as it deems equitable, provided the grant of such visita- 
tion rights shall not be contingent upon any order of financial support by the court. 
In making, modifying or terminating such an order, the court shall be guided by the 
best interest of the child, giving consideration to the wishes of such child if he is of 
sufficient age and capable of forming an intelligent opinion. Visitation rights grant- 
ed in accordance with this section shall not be deemed to have created parental 
rights in the person or persons whom such visitation rights are granted. The grant 
of such visitation rights shall not prevent any court of competent jurisdiction from 
thereafter acting upon the custody of such child, the parental rights with respect to 
such child or the adoption of such child and any such court may include in its 
decree an order terminating such visitation rights." 

Minnesota has the most comprehensive statute of the three, applying as it does to 
great-grandparents as well as grandparents. It also contains special provisions for 
deceased parents, divorce, and children who have lived with their grandparents for 
a year or more. Specifically, Minnesota Statute 257.022 provides 

"Subdivision 1. When parent is deceased. If a parent of an unmarried minor child 
is deceased, the parents and grandparents of the deceased parent may be granted 
reasonable visitation rights to the unmarried minor child during his minority by the 
district or county court upon finding that visitation rights would not interfere with 
the parent child relationship. The court shall consider the amount of personal con- 
tact between the parents or grandparents of the deceased parent and the child prior 
to the application. 

"Subd. 2. When parent's marriage is dissolved. In all proceedings for dissolution, 
subsequent to the commencement of the proceeding and continuing thereafter 
during the minority of the child, the court may, upon the request of the parent or 
grandparent of a party, grant reasonable visitation rights to the unmarried minor 
child, after dissolution of marriage, during his minority if it finds that visitation 
rights would be in the best interests of the child and would not interfere with the 
parent child relationship. The court shall consider the amount of personal contact 



80 

between the parents or grandparents of the party and the child prior to the applica- 
tion. 

"Subd. 2a. When child has resided with grandparents. If an unmarried minor has 
resided with his grandparents or great-grandparents for a period of 12 months or 
more, and is subsequently removed from the home by his parents, the grandparents 
or great-grandparents may petition the district or county court for an order grant- 
ing them reasonable visitation rights to the child during his minority. The court 
shall grant the petition if it finds that visitation rights would be in the best inter- 
ests of the child and would not interfere with the parent and child relationship. 

"Subd. 3. Exception for adopted children. This section shall not apply if the child 
has been adopted by a person other than a stepparent or grandparent. Any visita- 
tion rights granted pursuant to this section prior to the adoption of the child shall 
be automatically terminated upon such adoption." 

Until now I have been addressing the problem of what should happen when the 
parents or guardians of a particular child are in disagreement about whether there 
should be contact between a grandparent and grandchild. 

The difficult issue of how best to implement such policies remains. Certainly, pro- 
cedural as well as substantive reforms in state law are needed. If courts do not 
grant some grandparents standing to bring their visitation disputes to court, any 
such policies are, of course, worthless. For example, the issue of grandparent visita- 
tion may not have surfaced during a particular divorce for both parents were then 
alive, and both arranged for the child to see their parents during part of their own 
time with the child. Later one parent dies. The remaining parent then remarries 
and his new spouse refuses to allow the child to see the parents of the deceased 
spouse. Unless access to court is available at this time, there will be no way for the 
grandparents to bring evidence to court as to why it would be in the best interests 
of the child for their relationship to continue. 

Most courts have not granted access to courts to grandparents after a divorce. 
Connecticut is one of the few exceptions. See Mirto v. Bodine, 29 Conn. Supp. 510 
(1972). The same statutes mentioned above that have established the principle in 
more than forty states that grandparent visitation can be permitted when it is in 
the best interests of the child, however, have also established new procedural rights 
for grandparents. Many permit grandparents to bring a habeas corpus proceeding to 
argue for visitation when their child has died and the custodial parent refused them 
access to their grandchild. Unfortunately, most such statutes do not specify what 
should happen when a custodial parent remarries and the new spouse^ adopts the 
child. Adoption statutes, you see, generally cut off all legal ties to a child's biological 
parent and family. Although these statutes were aimed primarily at resolving issues 
of inheritance, a number of courts have construed them to cut off visitation rights of 
the grandparents as well. 

A noteworthy exception is the decision of the Supreme Court of New Jersey in 
Mimkon v. Ford, 66 N.J. 426, 33d A. 2d 199 (1975). Jill Ford was born to Joan and 
Donald Ford on July 2, 1966. Her parents separated prior to her birth, and were 
divorced November 4, 1968. Jill lived with her mother and maternal grandmother 
Rose Mimkon, until Joan died November 24, 1970. Donald then took custody of his 
daughter. 

In June of 1969, Donald remarried. His second wife, Adele, adopted Jill on August 
13, 1971. Rose Mimkon continued to visit Jill until Donald and Adele denied her 
further access. She then took the matter to court. 

The New Jersey court faced apparently conflicting statutes. One established the 
right to authorize visitation by grandparents after death or divorce; the other ap- 
peared to cut off legal claims after adoption. The court reasoned, correctly I believe, 
that the adoption statute was designed primarily to apply to children placed for 
adoption when their biological parents are unwilling or unable to care for them. 
Protecting the relationship between the adopted child and the adopting parents 
from interference by the biological parents might be wise in most such cases. But 
here the deceased mother was a fit parent, the court noted, and moreover it was a 
grandparent who sought visitation. 

The court continued: 

"* * * Interference by a natural parent with the relationship between the child 
and the adopting parents introduces alternative and conflicting authority figures in 
the child's life, creating tremendous emotional tension on the child and ultimately 
threatening to undermine the authority of the adoptive parents and their ability to 
make parental decisions. Grandparents ordinarily play a very different role in their 
child's life; they are not authority figures and do no possessively assert exclusive 
rights to make parental decisions. At best they are generous sources of uncondition- 



81 

al love and acceptance, which complements rather than conflicts with the role of 
the parents. 

"Thus, grandparent visitation involves a much lesser risk of threat to the physical 
or psychological well-being of the child or to the development of a healthy and natu- 
ral relationship between the child and the adopting parents than might continued 
contact by the natural parent. 

"It is biological fact that grandparents are bound to their grandchildren by the 
unbreakable links of heredity. It is common human experience that the concern and 
interests grandparents take in the welfare of their grandchildren far exceeds any- 
thing explicable in purely biological terms. A very special relationship often arises 
and continues between grandparents and grandchildren. The tensions and conflicts 
which commonly mar relationships between parents and children are often absent 
between these very same parents and their grandchildren. Visits with a grandpar- 
ent are often a precious part of a child's experience and there are benefits which 
devolve upon the grandchild from the relationship with his grand parents which he 
cannot derive from any other relationship. Neither the Legislature nor this Court is 
blind to human truths which grandparents and grandchildren have always known. 

"In view of this, we can only say that it is proper that in the unfortunate case of 
parental separation or death, grandparents should sometimes have privileges of visi- 
tation even over the objections of the adoptive parents. It is not only the ordinary 
devotion to the grandchild that merits the grandparent's continued right to be with 
him, but also the fact that in such cases, the continuous love and attention of a 
grandparent may mitigate the feelings of guilt or rejection which a child may feel at 
the death of or separation from a parent, and ease the painful transition. 332 A.2d 
at 203-05." 

I have focused until now primarily on the positive aspects of grandparent visita- 
tion. But even the New Jersey Supreme Court cautioned that such visitation should 
be authorized over parental objections only when it would be in the best interests of 
the child, warning that courts should not permit visitation by a particular grandpar- 
ent when it would undermine the authority of the adoptive parents or otherwise 
create psychological conflict for the child. ^ 

There is, of course, a strong possibility of psychological conflict in such situations, 
precisely because the child's relatives have by definition been unable to resolve 
their differences without resort to the courts. 

It was to avoid just such psychological turmoil that several experts in the field 
have argued against court ordered visits even by noncustodial parents. Thus Joseph 
Goldstein, Anna Freud, and Albert J. Solnit observed in Beyond the Best Interests 
of the Child: 

"Children have difficult in relating positively to, profiting from, and maintaining 
the contact with two psychological parents who are not in positive contact with each 
other. Loyalty conflicts are common and normal under such conditions and may 
have devastating consequences by destroying the child's positive relationship to both 
parents."'' 

They recommend, therefore, that once it is determined who will be the custodial 
parent, it is that parent, not the court, who should decide whether the other parent 
should be able to visit the child.* 

I acknowledge that forced visitation may have very negative consequences for a 
child. But I also believe this proposed cure may be worse than the original problem. 
Thus as Judge Dembitz has observed, "the disquiet that may attend court ordered 
visitation must be weighed against the child's needs for the psychological assets of 
the parents and the child's feeling of confusion and rejection that may follow the 
disappearance of the noncustodial parent."^ Moreover, as Professor and Mrs. 
Strauss have written: 

". . . [T]he social science data to support the proposition that a single official 
parent is preferable to two seems remarkably weak. ... To be the child of a mother 
and father who dislike one another is, to be sure, an unfortunate life experience; 
and parents who would subject their children to conflicting loyalties, whether or not 
they remain married, are less than adequate to the task. Nonetheless, given a child 
with existing relationships to both, we kriow of no studies which show that the legal 
death of one parent, the complete subordination of the child to the other's possibly 
distorted now, is invariably the preferable step for its future development."^ 



2 332 A.2d at 205. 

3 Goldstein, Freud and Solnit, Beyond the Best Interests of the Child 38 (1973). 
"Id. 

5 N. Dembitz, Book Review. 83 Yale L. J. 1304, 1310 (1974). 

^. P. Strauss & J. Strauss, Review of Beyond the Best Interests of the Child, 74 Col. L. Rev. 
996, 1002 (1974). 



82 

To return to grandparent visitation, the same division of opinion about whether it 
is proper to force visitation on an unwilling custodial parent appears in Mimkon v. 
Ford. Thus Justice Sullivan dissented from the majority position noting: 

"Here the trial judge ordered . . . visitation over the objections of the child, as 
well as the child's father and adoptive mother who felt that [the grandmother] has 
been a disruptive influence in their family unit. ... It may be that the child has 
been conditioned against her grandmother. If so, this is to be regretted, but if nur- 
turing the relationship between grandparent and grandchild is to be had at the ex- 
pense of the child's well being and the family unit in which she now lives, I have no 
doubt as to what a court should do.'"' 

Justice Clifford in dissent added: 

"Given the objection to visitation — be it well-taken or otherwise — I foresee contin- 
ued acrimony between the parties and a tug-of-war with Jill in the middle. . . . 
Judicial interference in this sensitive area should generally be undertaken only 
with the greatest hesitancy and in this case not at all." ^ 

'This division among thoughtful decision-makers should, if nothing else, caution us 
against rigid approaches to intra-family conflicts. 

To sum up my personal recommendations, I believe the trend of the last dozen 
years to permit grandparent visitation when it is in the best interests of the grand- 
child should be praised and extended to those few states that have not yet passed 
appropriate statute. Indeed, I would recommend amending those existing statutes 
which do not at present establish presumptions in favor of visitation when it ac- 
cords with the wishes of the biological parent who is the child of the grandparent in 
question, particularly when the grandparent and grandchild have an established re- 
lationship. I would also modify existing adoption statutes to permit grandparent 
visitation following adoption by a stepparent, the position espoused by the majority 
of the New Jersey Supreme Court in Mimkon v. Ford. 

At the same time, I want to underscore the importance of always making these 
decisions in the context of the lives of a particular child and a particular grandpar- 
ent. The law can coerce outward behavior, but if the price is excessive psychological 
turmoil for one child, it is too high. 

In view of the complex nature of the issue you are addressing today, it becomes 
even more important to determine what is the most appropriate role for the federal 
government to play. On the one hand, both the variation in, and relatively recent 
date of, state legislative protection for grandparent visitation suggest it would be 
easier if we had a single, natural standard. 

On the other hand, child custody matters have traditionally been left to the 
states. The one federal statute that touches this area was explicitly intended to 
avoid inconsistent decisions by the courts of two or more states involving the custo- 
dy of one child. 3 The lack of federal standards governing custody decisions reflects 
an important constitutional constraint: even if Congress wanted to act, it does not, 
in my view, have the constitutional authority to mandate standards for child custo- 
dy or visitation. 

There remains the role of providing guidance to interested states. It has been pro- 
posed, for example, that Congress might fund the drafting of a model act on this 
problem. 

While that step does not pose constitutional hurdles, it also may not accomplish 
much other then providing federal funds to an underemployed consultant or two in 
view of the rather dismal history of model acts drafted by the government ever 
being adopted by states. 

There is, by contrast, a quite distinguished record that has been compiled by the 
National Conference of Commissioners on Uniform State Laws, not because they are 
necessarily wiser than consultants to the Federal Government, but because the very 
process of working a problem through that body, composed as it is of judges, law 
teachers and distinguished members of the bar from each of the states, the District 
of Columbia and Puerto Rico, ensures both national exposure, and a test of whether 
a proposal is politically viable. 

Founded in 1892, the Conference works "to promote uniformity in state laws on 
all subjects where uniformity is deemed desirable and practicable." ^° In 1965, it 
began work on a Uniform Marriage and Divorce Act (UMDA). Professor Robert J. 
Levy of the University of Minnesota and Professor Herma H. Kay of the University 
of California served as co-reporters (drafters) of the UMDA. It was approved in 1974 



\ 332 A.2d at 205-06. 

* 332 A 2d at 207. 

»The Parental Kidnapping Prevention Act of 1980, 28 USCA § 1738A. 

>o Uniform Laws Annotated iii (1979). 



I 



83 

by the House of Delegates of the American Bar Association for passage in the states 
only after much debate about the sections governing the standards for divorce. 

Unfortunately, the UMDA, while it establishes standards and procedures for de- 
termining custody and visitation, deals only with visitation by parents. Visitation by 
grandparents (or any other adults who have developed strong ties with a child) is 
not discussed at all.* ^ 

At this point in time seven states have adopted the UMDA. It has been more in- 
fluential than this number suggests, however, for it has been a source of both policy 
and language for many state legislatures. 

A useful next step might be to encourage the Conference to revise the UMDA or 
even to promulgate a separate, new uniform act that deals specifically with the 
issue of grandparent visitation. 

In the end, our Constitution provides that there is no shortcut to persuading the 
legislature and the bench in each and every state to provide adequate protection for 
grandparent visitation, not simply for the sake of grandparents, or even because it 
will benefit the grandchildren, but because we will all be strengthened in this 
nation if we both acknowledge and support family ties across the generations. 

Mr. Blancato. The subcommittee has been joined by Congress- 
man Craig, who now assumes the role of chairman. 

Mr. Craig [presiding]. All right. 

Mr. Richard Victor, if you would go ahead with your testimony, 
please. 

STATEMENT OF RICHARD S. VICTOR 

Mr. Victor. Thank you. 

I wish to thank, for the record, the chairman of this committee, 
Chairman Biaggi, for having these hearings on behalf of the grand- 
parents that I have come in contact with in the State of Michigan. 

There are literally hundreds of grandparents that have been in- 
volved in the organizations which have already been mentioned in 
support of legislation, both on a State basis and Federal basis, for, 
and dealing with, grandparents' rights to visitation. 

I wish also to put on the record and thank Dr. Statuto, whom I 
have worked closely with, although we are a few miles apart — I in 
Michigan and her in Washington — in putting together material 
and getting these proceedings to go forward. 

I think it should be known the hard work that the entire staff of 
Congressman Biaggi has been doing to put these forward. 

For purposes of the record, I wish to ask that my written testi- 
mony be incorporated into the record. I will be reading from part 
of it. I will be deleting part of it and summarizing other parts. 

Mr. Craig. Go ahead. That will be done. 

Mr. Victor. Further, for purposes of the record, I think I should 
identify myself and who I am and what work I have done. 

I am an attorney in private practice in the State of Michigan. In 
Michigan, I am recognized as a specialist in grandparents' rights 
cases. I have had extensive experience in trying and litigating 
these cases through the courts in Michigan. 

I have appeared on several talk shows discussing this topic as re- 
cently as the day before we flew here, I appeared on two. 



' ' The UMDA in Section 402, the section that establishes standards for courts to follow in 
awarding custody, does include 

"(3) the interaction and interrelationship of the child with his parent or parents, his siblings, 
and any other person who may significantly affect the child's best interests. 

While the section might in some cases apply to grandparent. Section 407 on visitation speaks 
only of parent visitation. 



84 

I bring this to the committee's attention because of results of a 
poll provided by one of those shows, "Good Afternoon, Detroit," on 
WXYZ-TV, an affiliate of ABC. On that show, I appeared and 
made a presentation as the show's legal adviser, a capacity in 
which I serve for the station. 

A question was asked for viewers to call in dealing with, should 
grandparents have rights to visitation in divorce cases, and in 
times when they are denied the rights to visitation. 

I was informed after the 1-hour program that the response to 
this question was phenomenal. There were over 1,500 calls in this 
local area. They said that the highest rate of calls they ever re- 
ceived was 1,700. I failed to ask what the question was. I suspect, 
since it was Detroit, it probably was, should Sugar Ray Leonard 
fight Tommy Hearns? 

But other than that, it was the largest response they had re- 
ceived. From the 1,500 calls received, the percentage was 70 per- 
cent favored grandparents having rights to visitation when they 
had been denied these rights and only a mere 30 percent opposed 
this. 

For further background on myself, which I don't like to discuss, 
but hopefully it may bring some credibility to what I have to pre- 
sent to the committee, I am also an instructor in family law and 
have authored the family law courses at both Mercy College of De- 
troit and Oakland University, where I am currently on the faculty. 

I am chairman of the Custody Subcommittee of the Codifications 
of Statutes Committee for the State Bar of Michigan and presently 
rewriting custody laws that will be submitted to our legislature. I 
am a member of the advisory committee for the Oakland School, 
for Woodland Hills Medical Center, and the Cambridge Institute 
for Mental Retardation. 

I would now like to address the testimony. 

In my work as an attorney in private practice in the State of 
Michigan, I have had numerous dealings with grandparents who 
have been denied the right to visit with their grandchildren. 

Because of these denials, these grandparents were forced to seek 
court intervention to enforce rights which these grandparents felt 
were their rights inherently. Unfortunately, the rights which they 
have, if any, are statutory in nature. Therefore, my clients have 
been limited to what was set forth by State statute in the State of 
Michigan and the appellate decisions which interpret those stat- 
utes. They have only been able to be successful in receiving court 
intervention when legislation was provided by the State recogniz- 
ing this issue. 

Through our extensive research we have found various State 
statutes which deal with this topic and which will be discussed 
later in my testimony. Several of these State statutes have conflicts 
within the statutes, themselves, which has caused a great deal of 
confusion when they are interpreted by the courts. These conflicts 
arise in cases where there have been divorces or separations in 
families, death of a parent leaving surviving parents and minor 
children, children born to parents who were not married, or where 
questions of where a child should reside— between a parent and a 
grandparent — were submitted to a court. 



85 

In all of these cases, grandparents, whether maternal or pater- 
nal, were involved and wanted contact with their grandchildren. In 
very few cases have we dealt with grandparents fighting for custo- 
dy of their grandchildren over a natural parent. The cases that we 
have primarily dealt with are of such a nature that grandparents 
only wanted to continue a relationship with their grandchildren 
that had been established and they wished to continue, but had 
been terminated arbitrarily by the legal custodian — usually the 
parent or parents — of the child. 

Public attention has been drawn to this issue because of the deep 
emotions and the equities that are involved. I shall address, by way 
of a set of five factual scenarios, cases which I have handled and 
which I believe will show a definite need for legislative involve- 
ment. 

Before I begin these, I wish to point out that V-k years ago, when 
I started my — I will use the word crusade — dealing with the rights 
of grandparents and grandchildren in the State of Michigan, I was 
interviewed by several news reporters from local t^elevision sta- 
tions. 

Once we met, they came in and I talked to them, and I told them 
what we were doing with the legislature — they were doing stories 
on legislation we had been supporting in Michigan. When I fin- 
ished the presentation, I realized that I had done a terrible job be- 
cause the reporter turned to me and said, I didn't know grandpar- 
ents could not see their grandchildren if they didn't want to. 

I realized we had a long way to go to bring to light the problems 
that have arisen and that exist. When I read these five scenarios to 
you, I think you will understand how this does happen and how it 
could happen to anybody in this room. 

Scenario No. 1: Husband and wife, following marital difficulties, 
have a divorce action filed and pending. Prior to a divorce judg- 
ment being entered, husband commits suicide, leaving a 3-year-old 
child of the parties. Husband's parents — grandparents — have main- 
tained a close relationship with their 3-year-old grandson and con- 
tinue that relationship following the untimely death of their son. 

While wife is beginning her new life, grandparents have addi- 
tional involvement with their grandchild, and in fact take care of 
him while wife begins her employment. Wife meets a man and 
they subsequently marry. Man — stepparent — adopts child. Steppar- 
ent is now the legal father of said child. Query: Who are the pater- 
nal grandparents of that child? 

The grandparents are then told, "You can no longer visit or see 
grandchild again." What are their rights? 

Scenario No. 2: Wife, following marital problems with her hus- 
band, leaves husband along with their 6-month-old daughter. While 
driving, following her departure, she is involved in a fatal auto- 
mobile accident wherein she is killed. The 6-month-old child sur- 
vives. Wife's parents — maternal grandparents — take care of infant 
grandchild until father of the child remarries. Remarried father 
and stepmother then have the child live with them. Grandparents 
continue to see the child, but following the wishes of the father and 
stepmother, do not tell the child that they are her grandparents. 
Stepmother of child adopts the child and raises the child never tell- 
ing her that she was not the natural mother of the child. After sev- 



86 

eral years, the father and stepmother of the child tell grandparents 
they can no longer see their granddaughter again. 

The grandparents never tell the grandchild who they really are, 
following the wishes of the parent. However, they are unwilling to 
forfeit all contact with their grandchild. What rights do they have? 

Scenario No. 3: Husband and wife are divorced. Following di- 
vorce, husband is given custody of the one minor child. Husband 
has psychological problems which hinder his ability to continue 
custody of the minor child, and in fact while he legally has custody, 
said minor child resides with the paternal grandparents who prop- 
erly raise and nurture the child. 

Wife files for a change of custody, following her remarriage, 
which is granted. Paternal grandparents never contested the 
change of custody and in. fact were in agreement with the wife 
having legal custody, as they acknowledged the psychological prob- 
lems which affected their son. Subsequent to wife regaining custo- 
dy, and for no apparent reason, she completely denies the paternal 
grandparents any visitation with the minor child. 

No allegation is ever made that the paternal grandparents are in 
any way unfit or would be harmful to the minor child. What are 
their rights? 

Scenario No. 4: Unwed mother gives birth. Maternal grandpar- 
ents are extensively involved in helping raise the child. Putative 
father of the child acknowledges paternity and seeks custody of the 
minor child. Mother of the child does not want custody of the child 
and does not contest father's petition. Maternal grandparents of 
the child want to be able to assure visitation with the child once 
custody is granted to the acknowledged natural and now legal 
father of the child. What rights do they have? 

The last factual scenario: Husband and wife have one minor 
daughter. Husband dies and wife maintains custody of minor child. 
Because of emotional and psychological problems which the mother 
of the child is suffering, she sends the minor child to her mother's 
home — maternal grandmother — to live with the maternal grand- 
parents for a period of time. The child resides with the maternal 
grandparents, is raised by them for a period of time and does well. 

Subsequently thereafter, the mother of the child decides she 
wants her minor child back and refuses the maternal grandparents 
to have any contact with the minor child, including visitation. Ma- 
ternal grandparents are worried because of the history of emotion- 
al problems which the mother of the child has suffered and not 
only refuse to give up their contacts with their minor grandchild, 
but worry for his safety as well. What legal rights do they have? 

The above five factual scenarios are real. They represent only a 
small segment of cases which I have litigated over the past few 
years. Some of these cases are still pending and awaiting eviden- 
tiary hearings dealing with what is in the best interests of the 
minor child. Others have been disposed of through either court rul- 
ings or voluntary dismissals following the intervention of psychia- 
trists, psychologists, social workers, or other professionals trained 
in the behavioral sciences who have helped reconcile families fol- 
lowing disputes, as I have set forth above. 

Unfortunately, in most of the cases where professionals in the 
behavioral sciences have intervened, their intervention was only 



87 

agreed to by the legal custodian or parent(s) because of the threat 
of court litigation. The incentive for legal custodian of a minor 
child to attempt counseling or a voluntary reconciliation of the 
emotional traumas involved was their knowledge that the grand- 
parents involved had the ability to seek court enforcement pursu- 
ant to legislative enactments. 

Without those legislative enactments, without just and proper 
laws available, there would be no incentive. Thus, the fact that leg- 
islation is created will not, of and by itself, create additional bur- 
dens on our courts. 

I want to make this very clear. I am going to leave from the writ- 
ten testimony, because now I am getting emotionally involved with 
what I have to say. I think I want to just address it. It has been a 
long morning. We are into the afternoon. This committee has 
heard emotional stories from grandparents. 

I could have told the committee beforehand that if you give a 
grandparent an opportunity to tell their story, themselves, without 
the aid of the attorneys sitting there, it will be a long presentation. 
They rarely have that opportunity to stand before a court and tell 
their story. They have come here today in hopes of attempting to 
do that, and their stories are long, their stories are involved, their 
stories are the depth of their own heart. 

I thank the committee for its indulgence and its patience in lis- 
tening to these problems. The point I would like to make is the leg- 
islation we are asking for, the legislation which I feel is badly 
needed, will not overburden courts. 

I have found in Michigan that the more extensive the legislation 
we receive, the more we are able to resolve disputes and settle 
cases. We have the incentive there because without the legislation, 
the parties are totally in disagreement. They are in total disarray. 
There are problems. There are injustices. No one knows what they 
can do. They don't know their rights or responsibilities; but if we 
have something clear and definitive which sets those forth, parties 
know they have two alternatives. Either they can fight in court 
and they can have the expense of legal costs, but, more so, the ex- 
pense of the emotional costs that are involved, or they can sit 
down, through the help of behavioral scientists, professionals 
trained in these areas, and try to resolve their disputes. 

True, sometimes the disputes are too far gone and they will not 
be able to be resolved by professionals who are trained; and some- 
times grandparents should not be granted the rights to visitation. 

We are not saying to this committee that all grandparents 
should have rights of grandparent visitation in every case. What 
we are saying is, that if it is in the best interests of a child, then 
let visitation occur. 

How do we define this best-interest question? In my written testi- 
mony I set forth a statute which Michigan uses to define that. I 
will not repeat it. It is in my testimony, and it is in the record. But 
I incorporate parts of that statute along with statutes from around 
the United States, and what my staff did before I came here is we 
pulled all of the legislation dealing with the best interests of a 
child as well as all legislation dealing with grandparents' rights 
throughout the United States, and we reviewed everything that 
there was, and we tried to take the best of all of that, and I have 



88 

prepared a package of proposed legislation which is short, only two 
pages long, but I have submitted that in my written testimony. It is 
not the end, but it is a beginning. 

One of the things that I attempted to do other than setting forth 
what I thought was necessary for legislative enactment was to put 
a safeguard in the legislation, the safeguard being a definition of 
what is in the best interests of a child. 

If a court or a mediation panel knows what they are looking for 
as the standard — and I have attempted to define that — then it 
makes it much easier for everybody to know when visitation should 
occur and when it should be denied. In the proposed legislation, 
which is found at the end of my testimony, pages 18 and 19, I at- 
tempt to set forth my definition of what I feel the court should look 
to when determining what is in the best interests of a child. 

[Mr. Victor's prepared statement follows:] 



89 

Prepared Statement of Richard S. Victor, Attorney 

TESTIMONY tO THE HUMAN SERVI-CES SUB-COMMITTEE 

OF THE SELECT COMMITTEE ON AC fNG ^^ 

GRANDPARENTS" RICHTS TO VISITATTDTT - 

1 . How And Why This Issue Has Gathered National Attention 
And The Need For State Statute's^ 

Whenever portions of our society are members of a 
class which are susceptible to arbitrary decisions, animosity, 
and/or loss of rights, members of that class usually find a 
way to draw attention to their alleged injustices. Hopefully, 
our society understands and accepts this principle and 
attempts to cure injustices once they are known. 

As a result of continued population growth, especially 
our "baby boom of the 40' s," the 1980' s and 1990' s will pro- 
vide our society with a greater number of grandparents than 
we have known in our recent past. Add to this fact that the 
divorce rate in our country is staggering with estimates of 
almost one divorce for every two marriages, and in addition, 
these divorces are occurring between young parents v;ho have 
young children, we can see that this trend in our society can 
create conflicts which were unimaginable in past decades. 
Some of these conflicts need legislative involvement in or- 
der to cure injustices which might occur. Whether the legis- 
lative involvement which is necessary should be on a state- 
to-state basis, strictly Federal, or a combination of both, 
is a question which needs to be answered at this time. 



90 



Grandparents across our nation have been standing 
up and speaking out when they have been denied the opportunity 
to visit with their grandchildren for no apparent reasons. 
This has taken place in the form of the formation of various 
support groups on a state and national level, as well as 
numerous court cases which have been pursued to enforce inherent 
rights of grandparents to be able to visit with their grand- 
children. The title of this subject "grandparents' rights 
to visitation" is only one-half of the subject. The converse 
deals with the rights of grandchildren to be able to visit 
with, communicate, and maintain contact with their grand- 
parents. This, I believe, should be the crux of our investi- 
gation. This should be of significance to the legislative 
bodies which pass laws to protect segments of our population 
who are not able to protect themselves as well as to pass laws 
which provide remedies where injustices have occurred. To quote 
Arthur Kornhaver, M.D. and Kenneth L. Woodward: "The grand- 
parent and grandchild relationship is a vital connection." 

Through my work as an attorney in private practice 
in the State of Michigan, I have had numerous dealings with 
grandparents who have been denied the right to visit with their 
grandchildren. Because of these denials, these grandparents 
were forced to seek court intervention to enforce rights which 
these grandparents felt were their rights inherently. Unfor- 
tunately, the rights which they have, if any, are statutory 
in nature. Therefore, my clients have been limited to what 
was set forth by state statute in the State of Michigan and 



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91 



the appellate decisions which interpret those statutes, and 
have only been able to be successful in receiving court inter- 
vension when legislation was provided by the state recognizing 
this issue. 

Through our extensive research we have found various 
state statutes which deal with this topic and which will be 
discussed later in this testimony. Several of these state 
statutes have conflicts within the statutes themselves 
which has caused a great deal of confusion when they are 
interpreted by the courts. These conflicts arise in cases where 
there have been divorces or separations in families, death of 
a parent leaving surviving parents (grandparents) and minor 
children (grandchildren), children born to parents who were 
not married, or where questions of where a child should reside 
(between a parent and a grandparent) were submitted to a court. 
In all of these cases, grandparents, whether maternal or paternal, 
were involved and wanted contact with their grandchildren. In . 
very few cases have we dealt with grandparents fighting for 
custody of their grandchildren over a natural parent. The 
cases that we have primarily dealt with are of such a nature 
that grandparents only wanted to continue a relationship with 
their grandchildren that had been established and they wished to 
continue, but had been terminated arbitrarily by the legal custodian 
(usually the parent or parents) of the child. 

Public attention has been drawn to this issue because 
of the deep emotions and the equities that are involved. I 



-3- 



92 



shall address, by way of factual scenarios, cases which I 
have handled and which I believe will show a definite need 
for legislative involvement. 

2. The Nature of My Clients, The Themes That Run Through 

TPteir Cases, And The Rationale Used To Render Disposition , 

The Client Scenarios: 

1. Husband and wife, following marital 
difficulties, have a divorce action 
filed and pending. Prior to a divorce 
judgment being entered, husband 
commits suicide, leaving a three-year old 
child of the parties. Husband's 
parents (grandparents) have main- 
tained a close relationship with their 
three -year old grandson and continue 
that relationship following the untimely 
death of their son. While wife is be- 
ginning her new life, grandparents have 
additional involvement with their 
grandchild, and in fact take care of 
him while wife begins employment. 

Wife meets a man and they subsequently 
marry. Man (stepparent) adopts child. 
Stepparent is now the legal father of 
said child. Query: Who are the paternal 
grandparents of that child? 

Grandparents are told, "You can no 
longer visit or see grandchild again." 
I'Jhat are their rights? 

2. Wife, following marital problems with 
her husband, leaves husband along with 
their six-month old daughter. While 
driving, following her departure, she is 
involved in a fatal automobile accident 
wherein she is killed. The six-month 
old child survives. Wife's parents 
(maternal grandparents) take care of 
infant grandchild until father of the 
child remarries. Remarried father and 
stepmother then have the child live 
with them. Grandparents continue to 
see the child, but following the wishes 
of the father and stepmother, do not 
tell the child that they are her grand- 
parents. Stepmother of child adopts 

the child and raises the child never tell- 
ing her that she was not the natural 



93 



mother of the child. After several years, the 
father and stepmother of the child tell grand- 
parents they can no longer see their grand- 
daughter again. 

Grandparents never tell the grandchild who 
they really are, following the wishes of the 
parent. However, they are unwilling to forfeit 
all contact with their grandchild. What 
rights do they have? 

3. Husband and wife are divorced, followingdivorce 
husband is given custody of the one minor 
child. Husband has psychological problems 
which bender his ability to continue custody 

of the minor child, and in fact while he 
legally has custody said minor child resides 
with the paternal grandparents who properly 
raise and nurture the child. Wife files 
for a change of custody, following her 
remarriage, which is granted. Paternal 
grandparents never contested the change of 
custody and were in agreement with the 
wife having legal custody, as they acknowledged 
the psychological problems which affected 
their son. Subsequent to wife regaining 
custody, and for no apparent reason, she 
completely denies the paternal grandparents 
any visitation with the minor child. 
No allegation is ever made that the paternal 
grandparents are in any way unfit, or would 
be harmful to the minor child. What are 
their rights? 

4. Unwed mother gives birth. Maternal grand- 
parents are extensively involved in helping 
raise the child. Putative father of the 
child acknowledges paternity and seeks custody 
of the minor child. Mother of the child 

does not want custody of the child and does 
not contest father's petition. Maternal 
grandparents of the child want to be able 
to assure visitation with the child once 
custody is granted to the acknowledged 
natural and now legal father of the child. 
What rights do they have? 

5. Husband and wife have one minor daughter. 
Husband dies and wife maintains custody 
of minor child. Because of emotional and 
psychological problems which the mother 
of the child is suffering, she sends the 
minor child to her mother's home (maternal 



94 



grandmother) to live with the maternal 
grandparents for a period of time. 
The child resides with the maternal grand- 
parents, is raised by them for a period 
of time and does well. Subsequently there- 
after, the mother of the child decides she 
wants her minor child back and refuses the 
maternal grandparents to have any contact 
with the minor child, including visitation. 
Maternal grandparents are worried because 
of the history of emotional problems which 
the mother of the child has suffered and 
not only refuse to give up their contacts 
with their minor grandchild, but worry for 
his safety as well. What legal rights do 
they have? 

The above five factual scenarios are real. They repre- 
sent only a small segment of cases which I have litigated over 
the past few years. Some of these cases are still pending and 
awaiting evidentiary hearings dealing with what is in the best 
interests of the minor child. Others have been disposed of 
through either court rulings or voluntary dismissals following 
the intervention of psychiatrists, psychologists, social workers, 
or other professionals trained in the behavioral sciences who 
have helped reconcile families following disputes as I have 
set forth above. Unfortunately, in most of the cases where 
professionals in the behavioral sciences have intervened, their 
intervention was only agreed to by the legal custodian or parent 
(s) because of the threat of court litigation. The incentive for 
legal custodian of the minor children to attempt counseling or 
a voluntary reconciliation of the emotional traumas involved was 
their knowledge that the grandparents involved had the ability 
to seek court enforcement pursuant to legislative enactments. 
Without those legislative enactments, without just and proper 
laws available, there would be no incentive. Thus the fact that 



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95 



legislation is created will not of and by itself create additional 
burdens on our courts. In fact, they conversely create incentives 
for parties to reconcile and to correct wrongs or injustices which 
may have been committed. The court enforcement and application 
of legislation (both state and Federal) would be utilized as a 
last resort to correct injustices. 

In reviewing the five factual scenarios I have presented, 
the following themes can be found: 

1 . Where there is a death of a parent who 
leaves a minor child and grandparents 
of the minor child surviving; 

2. Following a divorce and custody dispute 
wherein custody of the minor child 

or children are placed with the former 
daughter or son-in-law of the grandparents 
of the child; 

3. Grandparents of a minor child born out of 
wedlock; 

4. A parent of an adult child who has a child 
have conflicts between themselves causing 
disputes which ultimately affect a grand- 
child and the grandparents' contact with 
that grandchild. 

In all of the above, and in the actual cases which these 

themes reflect, my legal duty was Co represent the grandparents 

and fight for their rights to be able to visit with their 

grandchildren. In no case do I believe that grandparental 

visitation is an absolute. Not all grandparents should be able 

to visit with their grandchildren. There may be many instances 

where in fact it would be detrimental to a child to be subjected 

to visitation with his or her grandparents given the proper 

factual setting. However, these decisions must be made on a 

case by case basis with one underlying theme or factor; and 



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96 

that is, THAT THE BEST INTERESTS OF THE CHILD SHALL CONTROL. 

3. "Best Interests" — What Does It Mean ? 

Michigan, at MCLA 722.23 defines best interests of 
the child as follows: 

722.23 Best interests of the child, definition 

Sec. 3. 'Best interests of the child' means the 
sum total of the following factors to be considered, 
evaluated, and determined by the court: 

(a) The love, affection, and other emotional ties 
existing between the parties involved and the child. 

(b) The capacity and disposition of the parties 
involved to give the child love, affection, and 
guidance and continuation of the educating and rais- 
ing of the child in its religion or creed, if any. 

(c) The capacity and disposition of the parties 
involved to provide the child with food, clothing, 
medical care or other remedial care recognized and 
permitted under the laws of this state in place of 
medical care, and other material needs. 

(d) The length of time the child has lived in a 
stable, satisfactory environment, and the desirability 
of maintaining continuity. 

(e) The permanence, as a family unit, of the 
existing or proposed custodial home or homes. 

(f) The moral fitness of the parties involved. 

(g) The mental and physical health of the 
parties involved. 

(h) The home, school and community record of 
the child. 

(i) The reasonable preference of the child, if 
the court deems the child to be of sufficient age 
to express preference. 

(j) The willingness and ability of each of the 
parents to facilitate and encourage a close and 
continuing parent-child relationshio between the child 
and the other parent. 



97 



(k) Any other factor considered by the court to 
be relevant to a particular child custody 
dispute . 

This state statute, which was effective April 1, 1971, 
and amended January 14, 1981, sets forth what the trial court 
should look to in defining the concept of "best interests" of a 
child. These eleven factors as set forth above, are to be 
utilized in both disputes regarding custody of minor children 
(in pending divorce actions or subsequent requests for modifica- 
tion) as well as when there are disputes regarding visitation. 
Unfortunately, a careful analysis of the Michigan statute may 
very well be applicable and quite definitive when dealing with 
a custody dispute, but somehow falls short when considering the 
question of visitation. An example would be sub-sections (c), 
(d), (e), (h), and (j) of the statute . These sub-sections would 
have very little, if anything, to do with requests for visita- 
tion. But, it is all we have in Michigan, when dealing with 
this issue. In review of other states, factors in considering 
the definition of "best interests" adds the following factors 
for a court to utilize: 

1 . The interaction and inter-relationship of 
the child with his parent or parents, 

his siblings, and any other person who may 
significantly affect the child's best 
interest* (Arizona 125.332); 

2. Notice of a custody proceeding shall be 
given to the child's parents, guardian 
or other custodian. The court, upon 

a showing of good cause, may permit inter- 
vention by any interested party. (District 
of Columbia Statute); 

3. The court shall not consider conduct of a 
proposed custodian that does not affect 
his relationship with the child. (Colorado 



98 



§14-10-124); 

4. In considering a proposed custodian, the 
court shall not presume that any person is 
better able to serve the best interests of 
the child because of that person's sex. 
(Colorado ) ; 

5. The physical violence of threat of physical 
violence by the child's potential custodian, 
whether directed against the child or against 
another person, but witnessed by the child. 
(Illinois 1602); 

6. Where the child has reached the age of four- 
teen, such child shall have the right to 
select the parent with whom such child desires 

to live unless that parent selected is determined 
not to be a fit and proper person to have 
custody of the child. (Georgia §30-127). 

As one can see from above, the states' attempts to 
define best interests somehow seem more logical when put in 
the setting of legal proceedings involving disputes as to cus- 
tody of minor children. Questions of visitation have usually 
been left to the discretion of trial court judges to determine 
what visitation should be granted and to whom. Most cases have 
dealt with questions of visitation concerning non-custodial 
parents of minor children. We do not have concrete legislation 
that specifically sets forth criteria to be utilized in making 
determinations regarding visitation of minor children with 
their grandparents. 

4. The Problem With State Laws As They Currently Stand (Michigan 
As A Prime hxample) ^ 

The history of grandparents' rights to visitation in 

Michigan, can be traced as recently as a little over one decade 

ago. In 1971 a state law was passed which provided that: 



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99 



If either the father or mother of an unmarried 
child is deceased, a parent of the deceased 
person may commence an action, by complaint or 
complaint and motion for an order to show cause, 
in the Circuit Court of the county in which 
the child resides for visitation of the child 
during its minority. If the court finds that 
such visitation would be in the best interests 
of the child, it may provide for visitation 
of the child by general or specific terms and 
conditions. (MCLA 722.27(a)) 

This state statute limited the rights of grandparents 

to seek visitation to situations where there had been a death 

of their own child leaving a minor grandchild. It would have 

created a remedy to our client scenario numbers 1 and 2 

(as set forth above), except for the fact that a stepparent 

adoption occurred in those factual situations. This was the 

problem that Michigan faced when a 1979 Court of Appeals decision 

( Bikos V Nobliski , 88 Mich App 157 (1979) was asked to interpret 

conflicting statutes dealing with this grandparent visitation 

statute and the Michigan Adoption Statute which provided in 

part as follows : 

After entry of the order of adoption, there 
shall not be any distinction between the 
rights and duties of natural progeny and 
adopted persons , and the adopted person 
shall become an heir at law of the adopting 
parent or parents, and an heir-at-law 
of the lineal and collateral kindred of 
the adopting parent or parents. After entry 
of the order of adoption, the adopted person 
shall no longer be an heir-at-law of his 
or her natural parents, except that a right, 
title, or interest vesting before entry of 
the final order of adoption shall not be 
divested by that order. (MCLA 710.60) 

The Michigan Court of Appeals in the Bikos , supra , case held 

that the Order of Adoption Statute took precedence over the 

Grandparent Visitation Statute which effectively made the 



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100 



natural grandparents of a minor child who was adopted by a 

stepparent following the death of the natural parent, no 

longer the legal grandparent of that child. Obviously, this 

conflict created harsh results and in my opinion a tremendously 

unjust dilemma for grandparents throughout the State of Michigan. 

In 1980, following the efforts of many groups and individuals, 

the Michigan Adoption Statute was amended to read: 

...after entry of the order of adoption, the 
adopted person shall no longer be an heir-at- 
law of a parent whose rights have been terminated 
or the lineal or collateral kindred ot that 
parent . . . . (MCLA /lU.bU as amended) 

The effect of that amendment, was that the adopted 

child would no longer be an heir to its natural family line 

once the child's parents' parental rights had been terminated. But, 

if there had been no termination of parental rights, the child's 

natural blood line would not be destroyed. This would then not 

take away from natural grandparents their standing as legal 

grandparents of a minor child who was adopted unless said 

adoption followed termination of parental rights. 

In addition, in 1980, the Michigan Child Custody 

Statute (MCLA 722.27) was amended to provide: 

Upon petition consider the reasonable visitation 
of maternal or paternal grandparents and, if 
denied, shall make a record of such denial. 

On its face, one would think this amendment to the 

Michigan Child Custody Statute would solve the problems that 

grandparents would have when being denied visitation with their 

grandchildren. However, albeit the intent of the legislature 

was good, they placed this amended statute under a section of 

the Michigan laws which had a preamble. The preamble, or 



101 



prerequisite to utilization of this amended statute, provided 

as follows: 

If a child custody dispute has been submitted 
to a circuit court as an original action under 
this act or has arisen incidently from another 
action in a circuit court or a judgment of a 
circuit court, for the best interests of the 
child the court may: ... 

Therefore, in order for a grandparent to attempt to 
utilize the statute which allows them to petition for consi- 
deration regarding visitation, there must either have been, or 
presently have, a child custody dispute involved. In the cases 
I have litigated, very rarely does a grandparent seek custody 
of their grandchild. They merely want visitation and, therefore, 
cannot avail themselves to the remedy which Michigan has pro- 
vided. In addition, when the legislature enacted the amendment 
to the Child Custody Statute which provided for this ability 
to petition for reasonable visitation (following a child custody 
dispute), the Michigan legislature repealed the prior law known 
as the Grandparent Visitation Statute, which was originally 
enacted in 1971, as cited above (MCLA 722.27(a)). Obviously, 
we have a great deal of confusion in our courts as to what 
is the present status of our laws and how should those laws 
be interpreted. There are presently pending several new statutes 
which hopefully will either cure the problem, or add to the 
conflict, but to date none have passed both Houses of our 
legislature . 

A brief research into how other states handle this 
dilemma finds that over twenty states have passed legislation 
dealing with this problem. Within these twenty states there are 



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102 



tremendous conflicts, especially once a stepparent adoption 
occurs. Other conflicts arise in the interpretation of these 
statutes and whether or not they are to be construed to intend 
that grandparents have standing to intervene in divorce proceedings 
to assert their rights to visitation while their own children's 
divorce matter is pending. Oklahoma (Oklahoma Statute Annotated 
Title 10, s60.16) has a unique enactment which appears to set 
forth that grandparents have visitation rights with their grand- 
children unless they are terminated by court order, and such is 
true even though the child may be adopted by his stepparent. 
Because of the frequency of stepparent adoptions and what affect 
the stepparent adoptions have on the grandparents of the child, 
specifically with respect to visitation rights, we need some 
cohesive legislation on a Federal level to help our states draw 
together into a unified position with respect to this problem. 

5. The Need For Uniform Grandparental Visitation Rights Act 

Other than the need for a clear and concise understanding 
of this problem from a national perspective, and Federal legisla- 
tion appropriate thereto, there is another reason why there is a 
need for Federal legislation dealing with this problem. In 
several cases wherein I represented grandparents who were forced 
to seek court enforcement of their visitation rights, we have 
been threatened by the parent or legal custodian of the minor 
grandchild involved, that if we were to pursue our court action 
they, the parent or legal custodian, would remove the child from 
the State of Michigan. Considering the fact that the City of 
Toledo, Ohio is approximately the same distance from Detroit, 



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103 



as the capiCol of our state, Lansing, Michigan, this threat 
of removing children from the state is very real. What remedy 
would a grandparent have when faced with this threat? If we 
had Federal legislation, along with state legislation, dealing 
with this problem, such as we have with our civil rights legisla- 
tion, the threat of moving from one state to another to avoid 
enforcement of court orders would be a mere "puff of wind." 

Our society today is a "transient society." We are 
little more than three hours away by air from one coast to 
another. People move from one state to another as easily now 
as we use to move from one city to another. This is progress, 
but how does it affect our families and our family structure? 
Fortunately, we do not have to concern ourselves with the family 
which is whole, or which is not in dispute. But what of the 
families who have emotional traumas placed upon them for one 
reason or another? Should they be afforded protection in 
situations where unjust actions motivated by animosity, 
vendictiveness , and hostility, tear apart blood relationships. 
The problem of grandparents' rights to visitation is no longer 
a local issue. We need state statutes to protect people within 
the boundaries of our states. However, when the people involved 
live in different states or move from one state to another, 
then we need Federal legislation available for the same reason 
that we need state legislation when the parties are confined 
to one single state. Again, court enforcement of this legisla- 
tion is a last resort 1 It is the motivating incentive for 
parties to reconcile their differences. It is the motivating 
incentive for parties to voluntarily seek counseling in hopes 



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104 



of reconciling their family traumas. But it does provide a last 
resort for injustices which may occur. 

I have had an opportunity to review the Uniform Grand- 
parental Visitation Rights Act drafted by Roger E. Stevens. 
I believe it is a good skeleton, but it needs some work. Sub- 
section 1 sets forth that: 

Notwithstanding the award of any child by adoption 
... all children shall be entitled to have reasonable 
grandparental visitation .... 

I believe the word adoption needs further clarification as to 
uhethsr or not this statute should affect the family unit where 
an adoption at birth following termination of parental rights 
on a voluntary basis is made. I am not certain that disrupting 
that new family unit (distinquishing this from a stepparent 
adoption once a family unit has been in existence) would be in 
the best interests of the newly adopted child. This is something 
for further discovery and I would defer to professionals in the 
behavioral sciences for their imput. I would also think that 
further clarification by way of definition should be set forth, 
so that a trial court would have a better understanding of 
exactly what definition "endanger the child's physical health 
or significantly impair his emotional development" means. 
This is quite significant as it would be the crux of the court 
proceeding and the burden for the litigant to prove and/or over- 
come. This must not be ambiguous. It must be clear, concise, 
and highly definitive, so that all parties involved know what 
standards are to be met if grandparent visitation is to be denied, 



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105 



In Sub-section 2 of the Uniform Grandparental Visitation 
Rights Act which was submitted to me, I would suggest that a 
definition of "best interests of the child" be attempted, so that 
the trier of fact in these cases would know what standard is to 
be followed when implementing sub-section 2 of the Act. Further, 
the Act should set forth the procedural factors which are to be 
followed when asking a court to implement this legislation and 
enforce same (i.e. done by way of petition or petition and order 
to show cause or complaint, etc.). 

6. Soecific Recommendations 
i , 

The most obvious recommendation that I can make, but 
one which is not part of these hearing is that each state adopt 
some form of legislation recognizing the problem of grandparents' 
rights to visitation and providing some remedy which would be 
available to enforce these rights. 1 would also suggest that 
state legislation set forth a scheme of mandatory counseling 
through the use of professionals in the behavioral sciences 
to help provide direction for families who are in dispute and 
are suffering from the emotional traumas which are usually pre- 
sent when an issue of denial of grandparental visitation is 
involved. The court should be able to consider the willingness 
to cooperate in attempting to reconcile these problems and not 
allow one party to control the proceedings by blatant avoidance 
of attempts to reconcile the dispute. 

Further, the court should be able to inquire into rea- 
sons for any alleged animosity (or why denial of visitation was 
made in the first place) and then consider only reasons where 

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106 



proper justification is presented. Obviously, if proper justifica- 
tion is presented, then this is to be considered when determining 
what is in the best interests of the child with respect to this 
visitation question. With respect to Federal remedies, I would 
recommend that legislation along the following lines be submitted 
for further discussion and inquiry with respect to this problem. 
Proposed Legislation: 

GRANDPARENTS' RIGHTS TO VISITATION 

(a) If either the father or mother of an unmarried 
minor child is deceased, the parents or 
grandparents of such deceased person may be 
granted reasonable visitation rights to the 
minor child during its minority by a court of 
competent jurisdiction upon a finding that 
such visitation rights would be in the best 
interests of the minor child. 

(b) When determining whether such visitation 
would be in the best interests of the 
minor child, the court should look to the 
following factors: 

1. The love, affection, and other 
emotional ties existing between 
the parties involved and the 
child. 

2. The capacity and disposition of the 
parties involved in give the child 
love, affection, and guidance 

and continuation of the educating 
and raising of the child in its 
religion or creed, if any. 

3. The moral fitness of the parties 
involved. 

4. The mental and physical health of 
the parties involved. 

5. The reasonable preference of the 
child, if the court deems the 
child to be of sufficient age 

to express preference. 

6. The amount of personal contact be- 

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107 



tween such persons and the minor 

child prior to the application for 

the order granting visitation 
rights . 

7. Any other factor considered by the 
court to be relevant equitable, 
and to be in good conscience in 
deciding the amount and extent 
of such requested visitation. 

(c) Any grandparent shall have the right to inter- 
vene in an action involving the guardianship 

of any minor child for the purpose of obtaining 
visitation rights to said minor child. 

(d) Whenever any court shall have had before it 
any questions concerning the custody of any 
minor child, or whenever the parents of the 
minor child have been divorced, or are engaged 
in legal proceedings to obtain a divorce, or 
legal separation, the maternal or paternal 
grandparents of said minor child shall have the 
right to file a complaint or complaint and 
order to show cause requesting visitation 

with said minor child if said visitation would 
be in the best interests of said minor child. 

(e) The court may make or modify an order granting 
or denying grandparental visitation rights when- 
ever such order or modification would serve the 
best interests of the minor child; but the court 
shall not restrict a grandparent's visitation 
right unless it finds that the grandparental 
visitation would not be in the best interests 

of said child by clear and convincing evidence. 

(f) This section shall apply where a minor child 
has been adopted by a stepparent, grandparent, 
or other relative of said minor child; said 
adoption shall not terminate the rights of 
the child's maternal or paternal grandparents 
as herein set forth. 

(g) If a dispute with respect to grandparental 
visitation arises, then, the parties thereto shall 
be entitled to an evidentiary hearing wherein 

the court shall determine by clear and convincing 
evidence why said requested grandparental visita- 
tion shall not be granted. If a denial of said 
grandparental visitation is made, then the court 
shall make a record of such denial. The court 
shall at all times consider the best interests 
of the minor child when making this determination. 



108 



The above reflects a mere guideline which can be utilized 
in the drafting of grandparental rights to visitation laws. There 
is no question in my mind that the problems relating to the rights 
of grandparents to visit with their grandchildren is a real concern 
to a great number of people in our country. This concern is one 
which shall surely grow because of the amount of divorce in our 
country. We must concern ourselves with the concept of the "extended 
family" which includes grandparents, stepparents, and other third 
parties from the traditional family unit. Further, grandparents 
"as seniors" of our society shall have a greater impact as their 
numbers increase. The concept of "grandma" and 'grandpa sitting in 
a corner unable to stand up for themselves and speak, no longer 
exists. "Grandma' and 'grandpa," just as grandson and granddaughter, 
have inherent rights in our family unit. They are necessary to pass 
on the heritage of the past. They are a link in the long chain 
of continued growth and expansion of our society. They should no 
longer be ignored 1 

Psychiatrists, psychologists, and social workers can tell 
us of the importance that grandparents can have on grandchildren. 
As a former history major, it is interesting to note how different 
civilizations treat their older generations. It would seem logical 
that "seniors" can help us learn from our mistakes and teach us 
traditions and cultures which can be utilized and passed on in the 
future. Lastly, and it is something that I remind the litigants 
who are involved in cases where I fight in court for grandparent 
visitation, and that the parents who are standing in the 



109 



way of allowing their children to contact, communicate, and 
share with their grandparents , will one day be grandparents 
themselves. How do they want their child to remember their oum 
actions. We teach our children not by what we say, but by what 
we do. It is now time to do what must be done and to recognize 
the rights and responsibilities that we all face in the most 
basic structure that God ever created — the family. This is not 
a concern isolated to the local community, or even to a state as 
a whole. This is a concern, and a responsibility, of all citizens 
in our nation. I urge you to strongly consider adopting legislation, 
on a Federal level, in support of the rights of grandparents, and 
the rights of grandchildren in this regard. Thank you for your 
consideration , 

RESPECTFULLy SUBMITTED , 




<D S. VICTOR, Att/rney 
Greenfield Road 
Suite 212 

Oak Park, Michigan 48237 
968-3500 (313) 



110 

Mr. BiAGGi. Let me ask a question. Is it your contention that if 
we have good legislation on the books that it will serve as a deter- 
rent as far as going to courts are concerned? 

Mr. Victor. Most definitely. I think that the fact that you have 
clear and concise legislation in any area of law where reasonable 
people will not deter as to the definition, they will understand it, 
especially when you are dealing with this area of the law, my expe- 
rience, and it is extensive in this area in the State of Michigan, is 
that 90 percent of my cases will be resolved. 

To give this committee an indication of the five scenarios that I 
presented, all five of them went and a court action was started by 
way of a complaint. Four of the five never made one court hearing. 
They were resolved without even a court hearing. Once two reason- 
able attorneys are involved who sit and counsel their parties and 
tell them this is what the law says, four out of five said "OK, well, 
I do not like her or I never got along with my mother-in-law, but if 
this is what the law says and this is what it costs to fight it and the 
law is pretty clear, what are we going to do?" 

The attorneys may refer the parties to psychological specialists 
or social workers, somebody who is objective, and they resolve the 
disputes. The most difficult one we had was the one where the 
grandparents never told the grandchild that they were the actual 
grandparents. In that case we utilized a psychiatrist who first 
spoke with the parents. The problem was that the stepmother had 
convinced herself that she was the mother of the child. This was a 
very difficult case. It took a lot of time. It did not need court 
action. What it did need is reasonable people who understand that 
there are legal rights and then follow them through. 

The psychiatrist spoke with the parents and then he spoke with 
the grandparents to understand what the other parties were going 
through. Then he spoke with the child, and in the psychiatrist's 
office the child was told the truth, and then— and on the other 
hand when my children were born, that was the proudest moment 
of my personal life. There was a reuniting of that family and every 
Christmas I get packages of fruits and flowers from the grandpar- 
ents thanking me for bringing them back together with their 
grandchild, and they are together today. 

I received a telephone call from them a month ago saying that 
the parents of the child have moved out of the State of Michigan, 
but we will not need to go into court, because once the family was 
reunited— my clients live in Dearborn, Mich., also have a home in 
Florida— the parents of the child have allowed the grandchild pos- 
sibly to go to Florida to visit the grandparents. We never had a 
trial, we never had a court hearing. What we had was law. On the 
other hand, the need 

Mr. BiAGGi. Excuse me. Michigan has a law, but in the end there 
was a form of mediation was there not? 

Mr. Victor. The mediation was not in the formal presentation as 
attorneys used mediation. What we had is we had two attorneys 
and a psychiatrist who was agreed on by the two attorneys. 

Mr. BiAGGi. The law compelled them to take an alternate course? 

Mr. Victor. They were given two alternatives, an alternative of 
going to court or an alternative of going to the psychiatrist's office. 
I gave the alternatives. 



Ill 

Mr. BiAGGi. We have legislation in 42 States. You are testifying 
about Michigan? 

Mr. Victor. I am familiar with legislation in most of the States. I 
am very familiar in the application of the Michigan laws, which by 
the way, for purposes of this committee, may be changed as of this 
morning. There are two new bills on Governor Milliken's desk. 
They will be signed. There is no opposition to them. These new 
laws will broaden grandparents' rights to visitation further. 

Mr. BiAGGi. Which if any of these States have model legislation? 

Mr. Victor. I guess Hawaii, which we indicated today provided 
legislation for any interested person that could be brought in would 
now give us model legislation for the concept of the extended 
family, which I think is going to be a concept of the future because 
of the facts that there are many divorces, there are young people 
getting divorced and then remarriages, and because of the remar- 
riages we will have a concept in the 1980's, 1990's and the year 
2000 of stepparents and stepbrothers and sisters which will be a 
psychological family to a child. This extended family concept is 
something that I think we have to accept and it will be the reality 
of the future. 

Mr. BiAGGi. What seems to be evolving here is on a statewide 
level we have to have some process take place with the Commission 
on Uniform Laws. My experience with State legislatures is that 
you have some legislation that is enacted that is very comprehen- 
sive, and other legislation that is token legislation. So it would 
seem to me that what the testimony compels us to think is that 
you need good law, one that will deal with the floodgate situation 
that Mr. Kudler spoke about in the U.S. attorney's office. You will 
not have the floodgate situation because people now understand 
that they must sit down and find and pursue a reasonable course. 

How about the enforcement part of it from a State to State? 

Mr. Victor. What we have now? 

Mr. BiAGGi. When people flee. 

Mr. Victor. This is one of the problems I have addressed in the 
testimony. The testimony is in the record. I prefer to go one on one 
with you. Now you have the enforcement through the contempt 
process, and when people flee as we have heard testimony today, 
there is definitely a problem. There is also a problem in threats of 
when you have a family situation where they refuse to reconcile or 
refuse to try to resolve the disputes. I have had threats made that 
if you file your petition, Mr. Victor, my client has advised me that 
he is leaving the State with his family. That is a real threat and a 
deterrent to the grandparents carrying it further. 

If we had Federal legislation which is enacted throughout the 
United States and accepted as such, enforceable as such, that 
would be a mere puff of wind. It would be a recognized right na- 
tionally and federally. Our society today is a transient society. We 
are a little more than 3 hours away from one coast to another. 
People move from one State to another as easily now as we used to 
move from city to city. This is progress, but how does it affect our 
families and our family structure? 

Fortunately, we do not have to concern ourselves with the family 
which is whole or which is not in dispute. But what of the families 
who have emotional traumas placed upon them for one reason or 



112 

another? Should they be afforded protection in situations where 
unjust actions motivated by animosity, vindictiveness, and hostility 
tear apart blood relationships? 

The problem of grandparents' rights to visitation is no longer a 
local issue. We need State statutes to protect people within the 
boundaries of our States. However, when the people involved live 
in different States or move from one State to another, then we 
need Federal legislation available for the same reason that we need 
State legislation, when the parties are confined to one single State. 

Again, the court enforcement of this legislation is the last resort. 
It is the motivating incentive for parties to reconcile their differ- 
ences. It is the motivating incentive for parties to volunteer to seek 
counseling in hopes of reconciling their family traumas. But it does 
provide a last resort for injustices which may occur. 

I have had an opportunity to review the Uniform Grandparental 
Visitation Rights Act drafted by Roger Stephens which was submit- 
ted to me when I was invited to these hearings. My written testi- 
mony discusses it in depth, and I tried to analyze parts of it. It is a 
mere skeleton. It is not definitive enough. I do not think it is clear. 
It is a good theory, it is a statement of theory, it is not a good state- 
ment of legislation. 

I have some specific recommendations. The most obvious one 
that I can make is that each State adopt some form of legislation 
recognizing the problem of grandparents' rights to visitation and 
providing some remedy which would be available to enforce these 
rights. I would also suggest that State legislatures set forth a 
scheme of mandatory counseling through use of professionals in 
the behavioral sciences to help provide direction for families that 
are in dispute and are suffering from the emotional traumas that 
are usually present when an issue of grandparental visitation is in- 
volved. This can be in the form of mandatory mediation, and I be- 
lieve this is what the chairman was talking about and other people 
here. 

In Michigan, starting in July of 1983, we have new laws coming 
into effect dealing with divorce, and these laws provide for manda- 
tory mediation. The State bar questions whether or not it will be 
successful and useful, and I would present one argument against 
mediation that has been presented there for this committee to con- 
sider, and that is if mediation is utilized other than binding media- 
tion, and I do not believe that anyone has discussed binding media- 
tion or arbitration, the problem with mediation is that if one party 
feels they have lost, there is no actual enforcement, because a 
court, a judge, someone with the legal authority that the laws dic- 
tate and provide for is not making the decision. 

So what happens is whoever loses in a mediation situation has a 
right to an immediate appeal before the court. So unless the par- 
ties are able to resolve their differences, and if so they would not 
have been in court, they would have been able to resolve it be- 
tween the two attorneys before they filed the petition, as soon as 
one party loses the mediation level, they will file for a court hear- 
ing. I want a judge to hear my case. So the attorneys are going to 
have to try each case at least two times or we would have resolved 
the problem before we got into the mediation. So this is the prob- 
lem with a mediation concept other than a binding mediation. I do 



113 

not know what the solution is. I can tell you that that problem has 
happened in counties where I have practiced where they have the 
mediation such as Wayne County. 

Mr. BiAGGi. How frequently? 

Mr. Victor. Any time that the resolution that the mediators give 
is perceived by one of the parties as a loss. That means if one client 
says I really hate the other party and I am going to fight this to 
the death, their contention is I either win everything or I appeal. If 
there are reasonable people with reasonable attorneys who have 
had some kind of help and guidance, you realize that no one wins 
everything. There has got to be compromise, otherwise nothing 
would be done. 

Mr. BiAGGi. I am aware of that. On the other side of that, it 
would seem people are resigned to compromising in some fashion — 
I am trying to figure how effective that process is, even though you 
may have some cases where you have losses and people are furious 
and then 

Mr. Victor. You are asking about the mediation^ concept, how 
successful that would be? 

Mr. BiAGGi. Yes. 

Mr. Victor. I can be very honest with you. It is very limited, be- 
cause the law is going to be enacted in July. It was done on a limit- 
ed basis in one county, Wayne County, dealing with friend-of-the- 
court matters, child custody, and things of this nature. I have had 
extensive experience there. I would say a third of them were not 
resolved and had to be appealed to a higher court or to the judge, 
and I would say a majority of the ones that were not appealed were 
not appealed because of the legal costs that would be involved. 

Mr. BiAGGi. So you are really saying two-thirds of them were re- 
solved? That is substantial. 

Mr. Victor. That is substantial. The problem is, those were not 
cases where you had heavy disputes. Those were cases of how much 
child support should you pay or what day of visitation should you 
have or how much. Starting in July 1983 the new law will involve 
mediation for everjrthing dealing with child custody cases — in other 
words, we are trying to take divorce out of the trial court's docket. 
Then, after July I will be able to give you a better indication of 
how it works. 

The State had to find an alternative to take divorce out of the 
courts. Think of it, 50 percent of marriages end in divorce. If that 
were a disease, it would be an epidemic. These are all going to 
court. Who is paying for the judges to hear the cases? You are 
going to have to wait 3 years for a divorce trial? That is ridiculous. 
So they had to find an alternative. The mediation is the alternative 
they are attempting. As of next year we will know whether or not 
it works. 

I think it is something that the committee will look toward and 
find if there are other States who already have mediation for these 
kinds of disputes and to see what the percentages are of appeals. In 
Michigan we have very few appeals from our trial court where we 
have traditionally had these disputes resolved to the court of ap- 
peals, and that is because the State law says the court of appeals 
will not reverse a trial court's ruling unless they find an abuse of 
discretion. For those lawyers on the panel, that means that the 



114 

court of appeals is going to have to slap some judge's hands if they 
are going to overturn him. Otherwise they say that the trial court 
is going to be your court of last resort, but legally we give you a 
right to take it up. 

Mr. BiAGGi. Does that not bring us back to where we are? We 
heard some witnesses testify this morning that they are not satis- 
fied or they would be wary, put it that way— they would be wary 
about having the problem resolved by a judge. 

Mr. Victor. The problem is that it is unfortunate, the five stories 
that I heard, and I have heard many of them, and they are all un- 
fortunate for real and true facts. However, I could have brought, if 
they had wanted to come, an equal amount of people who have had 
an opportunity to be in court, and I do not like the term victorious 
or won, because nobody wins, nobody loses, but have been reunited 
and they would say the system works. 

Mr. BiAGGi. I do not know about the amount of traffic in various 
courts across our land. I imagine some of them are less belabored 
than others, but I know in the New York State courts it is just one 
huge traffic jam. The Kudlers testified that they were— their 
matter was bruited about from one judge to another, and in the 
midst of all that, the judge is dealing with other matters as well, so 
my thinking is that this kind of situation is delicate and difficult to 
begin with, and there should be some kind of atmosphere, a stable, 
tranquil atmosphere which assures the parties that there would be 
a genuine, deliberate consideration given to the whole matter. 

Mr. Victor. I go back and agree with ever5i:hing you have said, 
Mr. Chairman. I think about the years in the 1960 s when I was 
involved in high school and college activities and the civil rights 
acts were talked about and pending. I remember reading and being 
involved in debates on both sides of the question of whether or not 
there should be civil rights legislation, should you force people in 
their businesses or homes to do things that maybe they choose not 
to for whatever reason. Should you put laws and make it manda- 
tory or on a voluntary basis? 

We have the same problem. I remember being 17 years old and 
talking as a high school senior to one of the newspapers saying 
that once laws are passed and put on the books, people's hearts 
will sometimes be changed and biases will sometimes be overcome. 
Sometimes we need somebody above us saying this is what is right, 
and then sooner or later people follow through with that. 

I suggest that Federal legislation, a statement nationally, recog- 
nizing the rights of grandparents and grandchildren, is necessary. 
May I also say something else that is not known, and I did not 
want to be known in the State of Michigan, because I felt that it 
would hurt my objectivity and my being the advocate for my cli- 
ents in court. 

^ My involvement in this area is not only as a litigant, as an ad- 
versary for the litigants that are involved in these disputes, but I 
have something similar to the people coming before you. I am not a 
grandparent, not yet. I have a ways to go. My wife is here in her 9 
month. But I was a grandchild and I am a grandchild. For 20 years 
I was denied the opportunity to visit with my grandparents. It is 
too late for me to have memories of being a grandchild and having 
the opportunity that other grandchildren had. 



115 

I attempted to resolve disputes within my own family. My father 
died very suddenly a year and a half ago. I was never able to re- 
solve the disputes within my own family, and unfortunately they 
continue in my mind. I never as a child grew up knowing that I 
missed anything, because if you do not know what you are missing, 
you do not miss anything. When I married my wife Denise iVz 
years ago, 4 years ago, I came into her family and I saw for the 
very first time a table for dinner with four generations sitting 
around it, and I had never, ever perceived that before. I sat in a 
living room and discussed things with a grandparent, with a grand- 
mother, and I realized then as an adult that I had missed some- 
thing. 

What you do not have before you here, gentlemen and ladies, are 
grandchildren. It is obviously a bit exploitive to bring children in 
and have them speak, because as a child I did not know what to 
say and I really did not know my feelings. As an adult, though, you 
are better able to articulate feelings that you may have expressed 
that you lost. I did lose those feelings, and I am here now not as an 
attorney advocating a client's position but as a grandchild asking 
for help and asking for guidance. If there is legislation, and I feel 
that this is a land of laws, and I believe in that. Maybe I am naive, 
but I will always believe in that. This is a land of laws. We govern 
ourselves by our laws. We will be remembered by the laws that we 
put on our books. I believe it is necessary and I believe it is time to 
recognize this problem and attempt to resolve it. We, you, all of us, 
will not be able to resolve the difficulties for everyone, but if we 
make a record that there are legal rights of grandparents and 
grandchildren, rights which should not be taken away because of a 
death, a divorce, a separation or family trauma, and that these 
rights exist, I think we make a statement, and I think it will be 
followed in the years to come. 

A simple look at the population scale will show that within the 
next 10 to 15 years, in 20 years and beyond that, grandparents will 
no longer be a small minority in the corner. 

The baby boom of the 1940's will bring us grandparents of the 
1980's and 1990's. I took a look at the 1980 census before I came 
here today and if you look at the amount of people and numbers 
that are of grandparental age now, we are talking about 36 percent 
of our population, over 87,000 people. 

This is going to increase because in another 10 to 20 years, you 
are going to have the influx of a greater number of people who 
were from my generation who will be grandparents. 

These are the voters, these are the supporters of our country. 
And these are people in need. 

I think it is time we make a statement. 

Mr. BiAGGi. The question is and has puzzled us and apparently 
Professor Areen has questions about it as well, can the Federal 
Governm_ent be involved in this issue and justify its involvement on 
constitutional grounds? Either or both of you. 

Professor Areen. I am glad you raised the issue, Mr. Chairman. 
It is one of the issues I wanted to discuss today because I am con- 
cerned that we not overpromise. 



116 

More legislation is needed. Better legislation is needed. I could 
not agree with you more that better legislation will keep people 
out of court and I consider that always a good thing to do. 

I do not see anything in the Constitution that gives this body, as 
powerful as it is, the authority to set standards for custody. 

I can think of four very important things this committee can do, 
however. The first you are doing now. There is an important role 
in terms of publicizing this problem and providing some national 
leadership in terms of recognition of the need for better State laws. 

Second, you are in a position to work with both the States and 
some of the important private groups, such as the National Confer- 
ence of Commissioners on Uniform State Laws. 

Third, it seems to me it is an appropriate role to Congress to set 
up a national clearinghouse that might share information between 
the States as to legal advances at the individual level. There is, as 
you probably know, located in the Department of Health and 
Human Services, a National Parent Locator Service that works to 
locate missing children, or to track down missing parents for child 
support. 

It seems to me it would not be difficult to extend the authority of 
that existing entity to reach a situation in which children are 
taken out of State. 

Fourth, as my colleague Mr. Victor, has mentioned, and I agree 
with him, when you do have an interstate dispute, then there is 
clearly a Federal role. I would suggest it may be in order to consid- 
er a specific amendment to the Parental Kidnapping Prevention 
Act which was alluded to earlier, 28 USCA 1738A. 

It is an act intended to assure that we do not have conflicting 
court decisions and to encourage and indeed enforce recognition by 
one State of a decree in another— again, a change that would take 
care of at least one of the problems we heard this morning. 

Mr. BiAGGi. Mr. Craig. 

Mr. Craig. Thank you, Mr. Chairman. 

Professor Areen, you have touched on something that I was sit- 
ting here rolling through my mind as Mr. Victor spoke, the real 
question of can the Federal Government, can this Congress become 
involved in promulgation and writing of laws that will solve this 
problem or at least lend some strength toward solutions that you 
have discussed? 

I think a lot of people think if we can only get a Federal law, all 
of this problem is going to go away, when I think you made the 
point very clearly that although law in itself can establish pararn- 
eters and directives, it is really at that court level and at the medi- 
ation or the level of counseling where the real solutions come 
about. 

I guess my concern, and it is all dealing with the plight of the 
child, we are awfully concerned about the grandparents at the 
moment now and that is justifiable and I have witnessed those 
kinds of traumas with grandparents. 

I have to also say that we have to consider the child here and 
well we should. The kind of excessive psychological turmoil that a 
child can go through, sometimes it is too high a level. 

Professor, how would you measure that turmoil; and how should 
a judge evaluate it, recognizing the laws that are on the books — 



117 

and frankly, I come down on the side that this is a State priority 
and prerogative and not a Federal prerogative. 

Professor Areen. I think Dr. Derdeyne, who preceded us, under- 
scored at the level of psychoanalytic concerns the damage that 
kind of conflict can do to a child. I wish I had a simple measuring 
rod for determining when there is too much conflict for a particu- 
lar child. 

There certainly is not one that we can establish at a national 
level nor really even at a State level. 

It is a determination that has to be made for a particular child. 

So while we can set better national standards and better State 
standards to encourage solution of the straightforward problems, in 
the end, we have got to have solutions that are humane enough to 
deal with a particular child. 

There is no alternative in my view. 

Mr. Craig. Mr. Victor, you mentioned, in giving the examples 
you gave in your testimony — and I thought they were excellent — 
that you were able to bring about some solutions to these difficult 
programs. 

At this time, based on the laws of the State of Michigan and a 
couple more that you say may become law today or tomorrow or 
very soon, are you saying that the laws that are currently on the 
books of the State of Michigan are inadequate to handle the prob- 
lems you are asked to deal with? 

Mr. Victor. That is an excellent question. Congressman Craig. 
My testimony, the written testimony, has a section dealing with in- 
consistencies within Michigan itself. 

I brought this to the attention of the legislature in the last 2 
years in drafting of that legislation, which we feel was strengthen- 
ing and hopefully brought about the change that Michigan has now 
submitted to its Governor to pass. 

The new legislation that Michigan has is not perfect as far as the 
grandparents that I have represented feel, however, it does cure 
the defect in all situations except when a parent does not want his 
or her own parents to see the grandchild. 

Those situations the legislature felt it should not deal with. All 
other situations, when there was a death, a divorce, a situation 
where there was an unwed parent or parents are not married and 
there are children born, dealing with the scenarios I have submit- 
ted to you, all of those scenarios will now be covered under Michi- 
gan's laws. 

Michigan's laws are still inadequate when dealing with the defi- 
nition of best interests, dealing with visitation questions, they are 
very good dealing with child custody questions, but there are no 
laws dealing with what the court is to look to toward visitation. 

Mr. Craig. Are you saying, then, in this case, that the laws 
ought to override the right of the parent? 

Mr. Victor. I believe 

Mr. Craig. In custody of that child? 

Mr. Victor. You are asking a question of parental rights versus 
parental responsibility. You are dealing with a parent's right to be 
sovereign within his or her own home and to make the final deci- 
sions; is this correct? 

Mr. Craig. Yes. 



118 

Mr. Victor. I am indicating that that is an extremely important 
right and I am not a purporter of infringing on that right. 

However, with that right, as with all other rights, there come re- 
sponsibilities and if the rights and the responsibilities are playing 
off of one another and the responsibility does not stand up to the 
right that is given, there should be some intervention when there 
is a deprivation and an injustice. 

In these situations, parents have parental rights, but when they 
fail to properly maintain those rights and live up to their responsi- 
bilities, and when there is an injustice, then I think there should 
be some type of program to come to court for help. 

Mr. Craig. You are saying that it is then the responsibility of 
the Federal Government to decide that right, or in the case of the 
way you phrased it, that particular responsibility coinciding with 
the right of the parent? 

Mr. Victor. I feel that the Federal Government has a responsi- 
bility to the citizens of our Nation to allow citizens of our Nation to 
come to it for help when there is an injustice and they cannot re- 
ceive relief within their own State. 

I am suggesting that we have State laws to govern people within 
their own States and they utilize those State laws, but when those 
State laws are not in existence or when the State laws are confus- 
ing at best or inconsistent within the States themselves, in Michi- 
gan for the last 12 years, we have a prime example of that. 

I do not know what will happen when and if this new legislation 
is passed and how it will be interpreted. 

I can tell you there has been tremendous confusion within our 
State since we have had any laws at all. 

Then I think there is a need for the citizens to turn somewhere 
for help. 

Mr. Craig. In other words, you are saying in the case of Michi- 
gan, assuming that the Federal Government or this Congress or 
this committee might move on choosing to legislate responsibility, 
that this body holds more wisdom than the legislature of the State 
of Michigan in this case? 

Because it is apparently an area that the elected officials of the 
State of Michigan, who also are determiners of rights and responsi- 
bilities under State law, have said no, that is an area we will leave 
alone because that is an area of individual right. 

Mr. Victor. No; I think the legislature in Michigan has recog- 
nized the responsibility and attempted to draft legislation to meet 
that responsibility. 

What I am indicating is that if there is a moving from one State 
to another and let's say the grandparents in Michigan are seeking 
visitation rights under the Michigan law and the parents say we 
are moving to Toledo, Ohio, which is closer to Detroit than our own 
capital is — and it is a real possibility — what do the grandparents of 
the State of Michigan do? 

Mr. Craig. Then you are saying the constitutional right of the 
citizen to choose what framework of law he or she may wish to live 
under in the case of two States differing should be abrogated? 

Mr. Victor. I believe that the Constitution provides equal protec- 
tion under the laws for all people. 

Mr. Craig. In certain areas. That is correct. 



119 

Mr. Victor. That is correct. I believe under the interstate com- 
merce laws of the Constitution — I hate those buzzers — is a clause 
oftentimes used in situations where we have this type of diversifi- 
cation, and could be utilized if the Congress felt a need to utilize it. 

Mr. BiAGGi. Any more questions? 

Mr. Hughes. Will the gentleman yield? 

Mr. Craig. Yes. 

Mr. Hughes. We are running out of time and I am going to have 
to go. 

Mr. Craig. I just wanted the Professor to respond in counter- 
point to that. 

Mr. Hughes. Go ahead then. 

Professor Areen. I am not sure I can respond to all of the collo- 
quy except to pick up at the end. I think my colleague and I are 
not in disagreement on one point. I think he was conceding there is 
no constitutional authority for Federal legislation governing child 
custody and visitation within a particular State. 

Now, if you pull in another State, then there is arguably authori- 
ty to act. You have raised the more difficult question of whether it 
is wise to act in that case and the answer is, it seems to me, that it 
depends. 

There is reason — and that is what the Congress demonstrated 
last year in passing the Parental Kidnapping Prevention Act — to 
make sure that States honor a thought-through decision, particu- 
larly in the face of a kidnapping where someone flees simply to 
avoid a court order. 

Then it seems appropriate to say we will stick to the decision of 
the State that had real jurisdiction over the child. 

On the other hand, people have a constitutional right to move, so 
you have to look at it case by case. 

Mr. Craig. Thank you. 

Mr. Hughes. That is just the point I wanted to make. 

Mr. BiAGGi. That is a good point. 

Mr. Hughes. One of the reasons the Parental Kidnapping Act 
was passed was because we see the proceedings in courts frustrated 
by forum shopping. One of the things we can provide is national 
leadership. I quite agree with Mr. Victor that it is important for us 
to try to develop uniform standards through the Commissioners 
who have done a fairly decent job in developing uniform criteria. 

Unfortunately, when they developed the Uniform Act for Di- 
vorce, they neglected to even mention grandparents' rights. 

It seems to me though, that this is important in the context of 
what is best for a youngster, that it is a consideration that has to 
be taken into account. If it is not considered by the court, I do not 
think justice is being done. 

We can do a number of things. We can do a better job of making 
sure the Justice Department pursues those that take youngsters 
from the court's jurisdiction, and try to identify where they are 
and assist where States want to return them to the State that has 
jurisdiction. 

It seems to me we can do a better job of developing uniform laws. 
We can provide national leadership in that regard, providing, as we 
often have in the past, the incentives for States to determine they 
need that uniformity throughout the land. 



120 

I think it works against the Federal structure when a State can, 
by using its process, deprive another State of its sovereign right to 
exercise jurisdiction, thereby frustrating visitation rights or any 
other kind of rights. 

So, I think there is a lot we can do and still recognize that, 
historically, traditionally, and properly, visitation rights, like all 
domestic matters, belong to the States. We can do a better job of 
providing leadership. 

As I view it, that is what both of you have said in essence and I 
quite agree with it. 

Mr. BiAGGi. Mr. Victor, Professor Areen, thank you very much 
for your valued testimony. 

Dr. Derdeyne and Dr. Kornhaber, thank you for your testimony 
and all the grandparents that testified. 

I think this hearing represents a very significant step forward. 
We will get some clarification and see just exactly where we can go 
and what is required by this. 

I assure you this is not the last of it; it will be reflected in sever- 
al substantional actions by the Congress. 

We will simply have to adjourn at this point for a couple of rea- 
sons, one, the bells are ringing again; and two, we should be out of 
this room by 2 o'clock and we are 10 minutes overdue. The land- 
lord is relentless here. 

But I would really appreciate it if staff could stay in touch with 
you for some further information, advice, and guidance. 

I am very thankful for your presence and your contribution. 
Hopefully together we can make the situation a littler better. 

As I said at the outset and in the intermediate stages, I am opti- 
mistic. 

Thank you very much. 

[Whereupon, at 2:10 p.m., the hearing was adjourned.] 



APPENDIX 



Prepared Statement of Doris Jonas Freed, Chairperson, Committee on Child 

Custody, Section of Family Law 

Mr. Chairman and members of the subcommittee, as chairperson of the American 
Bar Association's Family Law Section's Child Custody Committee, I appreciate your 
invitation to me to present to this Subcommittee my views in the form of an over- 
view of the "Status of Grandparental Rights to Visitation Nation Wide," both as to 
statutes and judicially. 

You have also requested my views as to any federal remedies appropriate in pur- 
suing this problem. 

My name is Dr. Doris Jonas Freed. I confine my practice to family law, with par- 
ticular emphasis on doing whatever can be done on behalf of the welfare of chil- 
dren. I have written a number of books and articles, and lectured extensively on 

this subject. r /-. j 

The first part of my presentation will cover the Overview of the Status of Grand- 
parental rights; My next comments will be addressed to possible remedies to amelio- 
rate this problem. 

part 1.— the status of visitation rights of grandparents: an overview as of 

december 1, 1982 * 

/. The common law 

At common law, the general rule was that visitation would not be awarded over a 
parent's or custodian's opposition. However, the general rule was subject to some 
exceptions, and, in Pennsylvania at least, appears to have been subordinated to con- 
cern over the child's best interests. The three major exceptions to the usual common 
law rule are: (1) where there was an agreement or stipulation as to visitation, as for 
example, incident to a divorce proceeding; (2) where the child has resided with the 
person seeking visitation, as for example, where the child's custody was originally 
awarded to a parent who lived with grandparents and the custodial parent died and 
the surviving parent seeks a change of custody to him or her; and, finally, (3) where 
it is demonstrated that the parent seeking custody is "unfit" under the prevailmg 
notions of fitness at the time. 

Despite early American decisions that the child's best interests are paramount, 
the parental rights doctrine dominated common law decisions as to grandparental 
visitation, where a fit parent who had not contracted otherwise sought to bar such 
visitation. Most courts denied visitation to grandparents even in instances where 
there had been a long and meaningful visitation with the child, although there are 
a few decisions (from California and Pennsylvania) deciding otherwise. 

The reasons given in common law decisions for denying visitation include the fol- 
lowing: (1) Ordinarily the parent's obligation to allow the grandparents visitation is 
a moral and not a legal one; (2) judicial enforcement of a grandparent's visitation 
rights would divide parental authority thereby hindering it; (3) the best interests of 
the child are not furthered by forcing the child into the center of the conflict; (4) 
where there is a conflict between grandparent and parent, the parent alone should 
be the judge, without having to account to anyone for his motives in denying visita- 
tion; and (5) the ties of nature are the only efficacious means of restoring normal 
family relations and not the coercive measures which follow judicial intervention. 

Obvioulsy, the first reason given for withholding visitation begs the question by 
giving the result as a reason. The issue is whether or not legal recognition should be 



' This Overview is based in part on an updated article co-authored by Dr. Freed and Professor 
Henry Foster entitled "Grandparent Visitation: Vagaries and Vicissitudes", Journal of Divorce, 
Vol. V. Fall/Winter 1981 (The Haworth Press, 28 East 22nd Street, New York, New York 10010). 

(121) 



122 

given to the grandparent's claim to visitation. The second reason given is not a 
sound reason for an automatic bar to visitation and at most represents a factor to be 
considered where it is shown that divided authority would place the child in a 
double bind. The third reason given above is not convincing becasue the best inter- 
ests of the child depend upon the overall circumstances and a gratuitous presump- 
tion is not warranted. In this connection, it may be important to note that experts 
on child developmet are generally agreed about the importance for the child to 
maintain on-going meaningful relationships that are beneficial. 

//. Statutes permitting grandparents ' visitation 

Laws have been enacted in all but a minority of states in order to mitigate the 
severity and uncertainty of the legal status and standing of grandparents at 
common law to claim visitation privileges. We have found such statutes in Alabama, 
Alaska, Arkansas, Arizona, California, Colorado, Connecticut, Delaware, Florida, 
Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Michigan, Minne- 
sota, Missouri, Montana, Nevada; New Hampshire, New Jersey, New Mexico, New 
York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, 
Utah, Virginia, Washington, West Virginia, Wisconsin, although these statutes vary 
in details and coverage. 

Unfortunately, despite recent revisions, some of the states having such statutes 
still require that one or both parents be deceased for grandparents to be awarded 
visitation rights. For example, such was formerly true in California (under the origi- 
nal statute). New York (until the statutes were amended in 1974 and 1976), Michi- 
gan (before statute was amended). New Jersey (until 1973 law which now permits 
visitation also in cases where parents are divorced or living in different habitats) 
and in Missouri, Montana and Rhode Island (where such still remains the law). Ala- 
bama, Arkansas and Hawaii have no limitations, their statutes providing that in 
any divorce or custody cases the court may grant visitation rights to grandparents; 
Alaska's statute provides that such rights may be granted in actions for divorce, 
legal separation or when one or both of the parents have died; the statutes in Con- 
necticut, Illinois, Kansas and Michigan appear to avoid limitations, Florida provides 
for such rights "as part of proceedings for dissolution of marriage". Florida, Iowa 
and Louisiana permit grandparents to petition the court after divorce or separation, 
or when a parent dies, and Iowa extends this to "where a child has been placed in a 
foster home". Minnesota's statute covers the situation where the grandchild has re- 
sided with the grandparents or they have had considerable contact with the child 
and a parent is deceased or the parents seek a divorce. Oklahoma's unique statute 
appears to provide that grandparents have visitation with their grandchild, and that 
these rights persist even though the child in question has been adopted by a step- 
parent. 

///. Effects of adoption 

Only a small minority of the states make reference to the effects of adoption on 
the visitation rights of grandparents. In addition to Oklahoma, reference is made to 
adoption in California, Colorado, Minnesota, Montana, New Jersey and Ohio, these 
statutes permitting visitation rights to be awarded to a grandparent where the 
adoption is by a stepparent or other grandparents. Since the problem of the effects 
of an adoption upon the visitation rights of grandparents arises frequently and the 
cases are in conflict, it would be wise for all states to cover this matter by an ex- 
press statutory provision, and the distinction made between adoption by a steppar- 
ent or grandparent and that by a stranger has considerable merit. 

IV. Extension of visitation rights of grandparents to others 

Recently, there has been an extension of visitation rights to other than grandpar- 
ents. The statutes in Illinois, Kansas, Pennsylvania and Wisconsin provide that 
great-grandparents may petition for visitation under the same circumstances as can 
parents. 

Kansas and Virginia extend the right to stepparents, whereas California, Hawaii, 
Ohio and Utah permit visitation to be accorded to "anyone interested in the welfare 
of the child" and in California, consideration is to be given to the "amount of per- 
sonal contact between such person and the child" prior to the application for visita- 
tion. Connecticut permits visitation to be awarded to "any third party including, but 
not limited to grandparents", and the new Alaska statute permits visitation by an 
"other person". Ohio provides that relatives may be granted visitation; Virginia in- 
cludes "stepparents or other family members"; and Michigan specifies that there 



123 

may be visitation by "the maternal or paternal grandparents, or by others, by gen- 
eral or specific terms or conditions". 

V. Criteria 

A. Best interests of the child. — As in New York, many, if not most, of these stat- 
utes are qualified so that it must be found that visitation is in accordance with the 
best interests of the child. Minnesota directs the court to consider the amount of 
personal contact between the grandparent and the child, and Idaho requires a sub- 
stantial relationship with the child. Although it may be superfluous to write such a 
requirement into the statute, such provisions have the advantage of emphasizing 
the important factor of the psychological relationship between the child and the 
party seeking visitation. 

A sound argument may be made that any person or relative, in addition to a 
grandparent, should have standing to seek visitation rights where he or she has 
maintained a substantial relationship with the child. It may be in the best interests 
of the child to grant an aunt, or uncle, or even a non-relative visitation. Further, 
the grant of visitation should not be restricted necessarily to cases where there has 
been a parental divorce or one or both parents have died. As expressed in the Idaho 
and Minnesota statutes, the crucial question should be the child's welfare. Assum- 
ing the existence of a meaningful and beneficial relationship with a relative or a 
third person, it may be more important to the child to preserve that relationship 
than it would be for the custodian to have an absolute veto power over visitation. 

In those states which do not have statutory provisions granting discretion to 
award visitation rights to non^parents, legislative consideration should be given not 
only to the policy basis for mitigating the common law, but also to an extension of 
visitation rights to relatives and non-relatives who have stood in loco parentis or 
have a substantial interest in the welfare of the particular child. 

Several interesting issues have emerged as a result of the statutory construction 
and judicial interpretation of visitation provisions. California in particular has de- 
cided a series of cases which highlight two emergent issues, namely the effect of an 
adoption of the child on the statutory visitation privilege, and the impact of animos- 
ity or hostility between the custodian and the party seeking visitation on discretion- 
ary awards of visitation. 

New Jersey and Ohio agree with California that a stepparent adoption does not 
terminate the visitation rights of grandparents. New Jersey's highest court has read 
the adoption and visitation statutes as being in pari materia and awarded visitation 
rights to the maternal grandparents despite an adoption of the child by its step- 
mother who had married the father after the mother's death. As the California 
court had done previously, the New Jersey court made a distinction between an 
adoption by a relative, such as a stepparent, and an adoption by a stranger. An 
Ohio decision discussed the conflict in authorities and held that a stepparent adop>- 
tion was merely a factor to be considered by the court in the exercise of its discre- 
tion to grant or to withhold visitation rights when there had been an adoption. The 
court rejected cases from Kansas, Louisiana, Texas, and New York which had held 
to the contrary. 

B. Effects of animosity between child's custodian and grandparents. — Other than 
the problem of reconciling visitation rights or statutes with the law and policy re- 
garding adoptions, the most controversial issue in visitation cases has been what 
weight, if any, should a court give to the existence of animosity between the parties. 
As we have seen, the common law regarded the opposition of the custodian as suffi- 
cient reason for denying visitation. Where there is statutory recognition of visitation 
rights the mere existence of animosity alone usually has been regarded as an insuf- 
ficient reason for withholding them. Perhaps Pennsylvania reached a sensible 
result, even though there was no visitation statute, when a case was remanded in 
order for the trial court to determine the basis for any alleged animosity. The trial 
court in effect also was directed to retain continuing jurisdiction in order to deter- 
mine what effect, if any, visitation had upon the child's welfare. 

The courts in California, Georgia, Maryland, Pennsylvania, New Jersey, New 
York and many other states now agree that animosity existing between parents, 
stepparents and grandparents, in and of itself, is no bar to an award of visitation 
rights, and in a number of court decisions, animosity has been offset by the fact that 
grandparents have raised the child or had close contact with the child over a period 
of time. 

It is difficult to see why statutory visitation privileges should rest on a basis dif- 
ferent from visitation rights generally, such as that by a divorced parent. The exist- 
ence of animosity or hostility between the divorced parties, in and of itself, is not a 



124 

ground for withholding visitation. Although there is an esoteric but well-known ar- 
gument that custodial parents should have a veto power over any and all visitation, 
there is scant, if any legal, authority to back up the argument, and in fact, it has 
been rejected almost universally. 

At most, animosity may be a matter which invites exploration by the court to de- 
termine its factual basis, or a factor to be considered in awarding and setting the 
terms of visitation. Otherwise, as has been pointed out, the custodian may lift him- 
self by his bootstraps by creating friction which he then points to as a reason for 
denying visitation. Moreover, the approach should not be in terms of rewarding or 
punishing feuding parties, rather the concern should be with the child's best inter- 
ests. Especially where there has been a meaningful association between the child 
and the party seeking visitation, the blame for existing hostilities ordinarily is irrel- 
evant unless it has some direct bearing on the child's welfare. Obviously, grandpar- 
ents may be good grandparents and yet for one reason or another, have had bad 
relations with a son or daughter-in-law. 

C. The child's wishes.— The matter of the child's preference regarding visitation 
has been accorded the same weight as in custody cases generally. In other words, a 
stated preference of an older child is a matter to be considered in an exercise of 
discretion by the court, but the child's wishes are not determinative. In one case, 
the Pennsylvania court gave the child's opposition to visitation as a reason for deny- 
ing it. 'The child had said that she did not want to visit the grandparents because 
"they fight my mother." An Ohio decision likewise denied visitation because the 
child disliked the grandparents. The difficulty with these cases is that the child may 
have been "brainwashed" or may be parroting what the custodial parent told him. 

Where there are visitation statutes, a positive desire on the part of the child for 
visitation should carry great weight, but a negative attitude on the part of the child 
may require further exploration. An Illinois decision approached visitation in terms 
of the right of the children to know and associate with grandparents and honored 
the stated preference of the children. A New York decision held that the trial court 
had placed undue emphasis upon the grandchildren's opposition to court-ordered 
visitation. 

D. The health of the child. The effect of visitation upon the health of the child is 
another important factor in visitation cases, as well as in custody cases generally. 
Where it is shown that visitation would have an adverse effect on the child's health, 
generally it will be denied. The other side of the coin is shown by a California deci- 
sion, where the court concluded that a termination of contact with grandparents, 
who had stood in loco parentis with the child, probably would have an adverse effect 
upon the child's health and welfare. 

CONCLUSION 

Since only a minority of states do not have statutory provisions permitting an 
award of visitation to grandparents, or other concerned relatives or friends of the 
child, there currently is greater judicial consciousness of the psychological theory of 
the importance of existing associations and intergenerational contacts. If the best 
interests of the childs is a meaningful concept, and the focal point in visitation, as 
well as custody cases, it is clear that it is sound policy to nurture, rather than to cut 
off close relationships. Properly, the recognition of visitation rights of grandparents 
should be entrusted to the sound discretion of the court. It is not the grandparents' 
proprietary interest in the grandchild which justifies as award of visitation or custo- 
dy; it is the need of the grandchild to know and to have an association with con- 
cerned grandparents. The pleasures grandparents may derive from that association 
are merely a bonus, albeit a very precious one. 

With reference to the two major issues in the visitation cases, that is, the effect of 
the child's adoption upon visitation rights, and the weight to be given the existence 
of animosity between the parties, we conclude that both issues should be approached 
from the perspective of the child's best interests. Surely stepparent adoption or 
adoption of the child by other relatives does not require insulation of the child from 
contact with grandparents or other meaningful associations and it is only in the 
case of non-relative adoption where an argument may be made that adoption poli- 
cies demand that visitation be denied. On the issue of animosity and its role in visi- 
tation cases, the cases are correct which conclude that there is no convincing reason 
why the existence of a state of animosity should have any more effect when grand- 
parents seek visitation than it does where visitation is awarded to the other parent. 
In either event, it is a circumstance to be considered, but the child's welfare, includ- 
ing his right to maintain meaningful associations, should be the controlling consid- 
eration. 



125 

PART 2. — REMEDIES TO FACILITATE GRANDPARENT VISITATION 

Any remedy to facilitate grandparental visitation should not be in the form of fed- 
eral legislation, since this would be an unconstitutional intrusion into state law. 

Perhaps the subject might be addressed by the National Conference of Commis- 
sioners on Uniform State Laws. This Conference promulgates proposal model acts 
which, when finalized, are offered to the states for their adoption in whole or in 
part. 

It would be up to the Conference, of course, to decide in the first instance, wheth- 
er such a subject would be of sufficient importance to be the subject of its study and 
work. 

I thank you, Mr. Chairman and Members of the Subcommittee, for your invitation 
to me to address you on this subject and to present my views. 



Prepared Statement of Bettie J. LaMotte 

GRANDPARENTS — THE OTHER VICTIMS OF DIVORCE AND CUSTODY DISPUTES 

Mr. Chairman and members of the subcommittee; I am extremely pleased to have 
this opportunity to present testimony on a subject extremely importance to me. I 
would like to commend the subcommittee for undertaking these hearings. From per- 
sonal experience I am aware of the emotional character of the issue. If nothing 
more is accomplished, I hope the general public and the courts will come to under- 
stand that there are indeed other victims of divorce and custody disputes. 

As background, I would like to tell you a little about my family and the two most 
important reasons I am presenting this testimony — Tiffany Allison LaMotte, aged 6, 
and Tara Danielle LaMotte, aged 5. 

My husband's son was married in 1973. It was certainly not a marriage made in 
heaven. They were young, both in college, and, we believed, not ready to assume the 
responsibilites that marriage and a family inevitably bring. After Tiffany's birth in 
1976, problems began to surface. There were arguments, brief separations, and sub- 
sequent reconciliations. Tara, a beautiful child who, I am told, borders on genius, 
was the result of one of those reconciliations. The marriage, however, continued to 
falter and the final separation came in 1980. 

It is difficult to describe the depth of hatred and bitterness in this divorce. My 
husband and I attempted whenever we could to bring reason to the situation for 
Keith and his estranged wife, the children, and ourselves. In order that you might 
better understand the bitterness, I would like to relate a portion of the last conver- 
sation I had with the children's mother. I had called to talk with her and the girls. 
She was cold, indifferent and uncompromising. Her final words: "You have another 
grandchild. You can shower her with your affection. My girls don't need you and 
you don't need them". I was devastated and heart-broken. 

All effects to talk to or see the girls since that day in September 1980 have failed. 
Their father was granted limited visitation pending the divorce and my husband 
saw them in March 1981. I saw them last in July 1981. The mother now has success- 
fully transferred the bitterness and hatred she feels toward us to the children. And 
although their father's visitation has been increased, he is still unable to see them 
because they now refuse to have anything at all to do with him. So successful has 
been the alienation. 

As you probably know, the State of Maryland recently enacted legislation which 
allows grandparents the right to petition the court for visitation. I have carefully 
researched the subject and read every article and case I could find with the aim of 
pursuing the matter in court. However, attorneys I have talked with recommended 
against pursuing legal action, arguing that in the end the true victims are the chil- 
dren. Had we pursued the issue in court and won, would we have been able to with- 
stand the emotional strain of the children running crying to their room in absolute 
fear of us? 

In Mimkon v. Ford (Supreme Court of New Jersey, 1975. 66 N.J. 426, 332 A.2d 
199), the Court very eloquently stated what I believe to be an accurate description of 
the grandparent-grandchild relationship. I would like to quote a portion of that case 
for you: 

"It is biological fact that grandparents are bound to their grandchildren by the 
umbreakable links of heredity. It is common human experience that the concern 
and interest grandparents take in the welfare of their grandchildren far exceeds 
anything explicable in purely biological terms. A very special relationship often 
arises and continues between grandparents and grandchildren. The tensions and 
conflicts which commonly mar relationships between parents and children are often 



126 

absent between those very same parents and their grandchildren. Visits with grand- 
parents are often a precious part of a child's experience and there are benefits 
which devolve upon the grandchild from the relationship with his grandparents 
which he cannot derive from any other relationship. Neither the Legislature nor 
this Court is blind to human truths which grandparents and grandchildren have 
always known." 

I shared a very special relationship with my grandparents and want only to share 
with my grandchildren some of my experiences and love. 

The various state legislatures and the United States Congress can enact laws that 
will permit grandparents the right to visit their grandchildren, but can they write 
any law a provision that prevents a custodial parent from fostering bitterness and 
hatred in the children. 

I think not. It does not matter how many laws there might be on the books de- 
signed for my benefit and the benefit of all other grandparents in the nation who 
are forbidden to love and comfort their grandchildren. They are worthless unless 
you are able to legislate compassion into divorce and custody. 

I do not envy the task you have chosen. There are no easy answers. I would, how- 
ever, like to see visitation laws amended in a way that would allow a non-custodial 
parent to petition the court for visitation in degrees. For example, the non-custodial 
parent could ask for visitation for himself only, for himself and the paternal grand- 
parents, or for everyone in the family— aunts, uncles, and cousins. These natural 
associations are so vital to the growing up process. 

This is a difficult and emotional issue. I am deeply pleased that the subcommittee 
has chosen to explore this important aspect of human relationships. If nothing is 
accomplished legislatively, my hope is that you are able to publicize the issue and 
that the courts will recognize the extent of the problem and take it into account 
when deciding visitation. 

I understand that Tiffany and Tara are accomplished young ballet dancers. I 
would give just about anything if I could attend one of their recitals. It's Christmas 
and I would like to share the joy and excitement of Santa's visit, the school play 
and everything that makes Christmas a special time for children. 

Thank you for affording me this opportunity to share with you my very personal 
views on this emotional issue. 

o 



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